COVALENCE SPECIALTY MATERIALS CORP., as Issuer, and the Guarantors named herein 10¼% Senior Subordinated Notes due 2016 INDENTURE Dated as of February 16, 2006 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
Exhibit
10.1(e)
COVALENCE
SPECIALTY MATERIALS CORP.,
as
Issuer,
and
the
Guarantors named herein
10¼%
Senior Subordinated Notes due 2016
________________________
Dated
as
of February 16, 2006
________________________
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
TRDOCS01/76765.8
TABLE
OF
CONTENTS
Page
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
SECTION
1.01.
|
Definitions
|
3 |
|
SECTION
1.02.
|
Other
Definitions
|
33 |
|
SECTION
1.03.
|
Incorporation
by Reference of Trust Indenture Act
|
34 |
|
SECTION
1.04.
|
Rules
of Construction
|
34 |
ARTICLE
2
THE
SECURITIES
|
SECTION
2.01.
|
Amount
of Securities
|
35 |
|
SECTION
2.02.
|
Form
and Dating
|
36 |
|
SECTION
2.03.
|
Execution
and Authentication
|
37 |
|
SECTION
2.04.
|
Registrar
and Paying Agent
|
37 |
|
SECTION
2.05.
|
Paying
Agent to Hold Money in Trust
|
38 |
|
SECTION
2.06.
|
Holder
Lists
|
38 |
|
SECTION
2.07.
|
Transfer
and Exchange
|
38 |
|
SECTION
2.08.
|
Replacement
Securities
|
39 |
|
SECTION
2.09.
|
Outstanding
Securities
|
40 |
|
SECTION
2.10.
|
Temporary
Securities
|
40 |
|
SECTION
2.11.
|
Cancellation
|
40 |
|
SECTION
2.12.
|
Defaulted
Interest
|
40 |
|
SECTION
2.13.
|
CUSIP
Numbers, ISINs, etc.
|
41 |
|
SECTION
2.14.
|
Calculation
of Principal Amount of Securities
|
41 |
ARTICLE
3
REDEMPTION
|
SECTION
3.01.
|
Redemption
|
41 |
|
SECTION
3.02.
|
Applicability
of Article
|
41 |
|
SECTION
3.03.
|
Notices
to Trustee
|
41 |
|
SECTION
3.04.
|
Selection
of Securities to Be Redeemed
|
42 |
|
SECTION
3.05.
|
Notice
of Optional Redemption
|
42 |
|
SECTION
3.06.
|
Effect
of Notice of Redemption
|
43 |
|
SECTION
3.07.
|
Deposit
of Redemption Price
|
43 |
|
SECTION
3.08.
|
Securities
Redeemed in Part
|
43 |
TRDOCS01/76765.8
-i-
Article
4
COVENANTS
|
SECTION
4.01.
|
Payment
of Securities
|
43 |
|
SECTION
4.02.
|
Reports
and Other Information
|
44 |
|
SECTION
4.03.
|
Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock
and
Preferred Stock
|
45 |
|
SECTION
4.04.
|
Limitation
on Restricted Payments
|
51 |
|
SECTION
4.05.
|
Dividend
and Other Payment Restrictions Affecting Subsidiaries
|
56 |
|
SECTION
4.06.
|
Asset
Sales
|
57 |
|
SECTION
4.07.
|
Transactions
with Affiliates
|
60 |
|
SECTION
4.08.
|
Change
of Control
|
63 |
|
SECTION
4.09.
|
Compliance
Certificate
|
65 |
|
SECTION
4.10.
|
Further
Instruments and Acts
|
65 |
|
SECTION
4.11.
|
Future
Guarantors
|
65 |
|
SECTION
4.12.
|
Liens
|
65 |
|
SECTION
4.13.
|
Limitation
on Other Senior Subordinated Indebtedness
|
66 |
|
SECTION
4.14.
|
Maintenance
of Office or Agency
|
66 |
ARTICLE
5
SUCCESSOR
COMPANY
|
SECTION
5.01.
|
When
Company May Merge or Transfer Assets
|
66 |
ARTICLE
6
DEFAULTS
AND REMEDIES
|
SECTION
6.01.
|
Events
of Default
|
69 |
|
SECTION
6.02.
|
Acceleration
|
70 |
|
SECTION
6.03.
|
Other
Remedies
|
71 |
|
SECTION
6.04.
|
Waiver
of Past Defaults
|
71 |
|
SECTION
6.05.
|
Control
by Majority
|
71 |
|
SECTION
6.06.
|
Limitation
on Suits
|
72 |
|
SECTION
6.07.
|
Rights
of the Holders to Receive Payment
|
72 |
|
SECTION
6.08.
|
Collection
Suit by Trustee
|
72 |
|
SECTION
6.09.
|
Trustee
May File Proofs of Claim
|
72 |
|
SECTION
6.10.
|
Priorities
|
73 |
|
SECTION
6.11.
|
Undertaking
for Costs
|
73 |
|
SECTION
6.12.
|
Waiver
of Stay or Extension Laws
|
73 |
ARTICLE
7
TRUSTEE
|
SECTION
7.01.
|
Duties
of Trustee
|
74 |
TRDOCS01/76765.8
-ii-
|
SECTION
7.02.
|
Rights
of Trustee
|
75 |
|
SECTION
7.03.
|
Individual
Rights of Trustee
|
76 |
|
SECTION
7.04.
|
Trustee’s
Disclaimer
|
76 |
|
SECTION
7.05.
|
Notice
of Defaults
|
76 |
|
SECTION
7.06.
|
Reports
by Trustee to the Holders
|
77 |
|
SECTION
7.07.
|
Compensation
and Indemnity
|
77 |
|
SECTION
7.08.
|
Replacement
of Trustee
|
78 |
|
SECTION
7.09.
|
Successor
Trustee by Merger
|
79 |
|
SECTION
7.10.
|
Eligibility;
Disqualification
|
79 |
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company
|
79 |
ARTICLE
8
DISCHARGE
OF INDENTURE; DEFEASANCE
|
SECTION
8.01.
|
Discharge
of Liability on Securities; Defeasance
|
79 |
|
SECTION
8.02.
|
Conditions
to Defeasance
|
81 |
|
SECTION
8.03.
|
Application
of Trust Money
|
82 |
|
SECTION
8.04.
|
Repayment
to Company
|
82 |
|
SECTION
8.05.
|
Indemnity
for Government Obligations
|
82 |
|
SECTION
8.06.
|
Reinstatement
|
82 |
ARTICLE
9
AMENDMENTS
AND WAIVERS
|
SECTION
9.01.
|
Without
Consent of the Holders
|
83 |
|
SECTION
9.02.
|
With
Consent of the Holders
|
84 |
|
SECTION
9.03.
|
Compliance
with Trust Indenture Act
|
85 |
|
SECTION
9.04.
|
Revocation
and Effect of Consents and Waivers
|
85 |
|
SECTION
9.05.
|
Notation
on or Exchange of Securities
|
85 |
|
SECTION
9.06.
|
Trustee
to Sign Amendments
|
85 |
|
SECTION
9.07.
|
Payment
for Consent
|
86 |
|
SECTION
9.08.
|
Additional
Voting Terms; Calculation of Principal Amount
|
86 |
ARTICLE
10
SUBORDINATION
OF THE SECURITIES
|
SECTION
10.01.
|
Agreement
to Subordinate
|
86 |
|
SECTION
10.02.
|
Liquidation,
Dissolution, Bankruptcy
|
86 |
|
SECTION
10.03.
|
Default
on Designated Senior Indebtedness
|
87 |
|
SECTION
10.04.
|
Acceleration
of Payment of Securities
|
88 |
|
SECTION
10.05.
|
When
Distribution Must Be Paid Over
|
88 |
|
SECTION
10.06.
|
Subrogation
|
88 |
|
SECTION
10.07.
|
Relative
Rights
|
88 |
|
SECTION
10.08.
|
Subordination
May Not Be Impaired by Company
|
89 |
|
SECTION
10.09.
|
Rights
of Trustee and Paying Agent
|
89 |
|
SECTION
10.10.
|
Distribution
or Notice to Representative
|
89 |
|
SECTION
10.11.
|
Article
10 Not to Prevent Events of Default or Limit Right to
Accelerate
|
89 |
|
SECTION
10.12.
|
Trust
Monies Not Subordinated
|
89 |
|
SECTION
10.13.
|
Trustee
Entitled to Rely
|
89 |
|
SECTION
10.14.
|
Trustee
to Effectuate Subordination
|
90 |
|
SECTION
10.15.
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness
|
90 |
|
SECTION
10.16.
|
Reliance
by Holders of Senior Indebtedness on Subordination
Provisions
|
90 |
TRDOCS01/76765.8
-iii-
ARTICLE
11
GUARANTEES
|
SECTION
11.01.
|
Guarantees
|
91 |
|
SECTION
11.02.
|
Limitation
on Liability
|
93 |
|
SECTION
11.03.
|
Successors
and Assigns
|
94 |
|
SECTION
11.04.
|
No
Waiver
|
94 |
|
SECTION
11.05.
|
Modification
|
94 |
|
SECTION
11.06.
|
Execution
of Supplemental Indenture for Future Guarantors
|
94 |
|
SECTION
11.07.
|
Non-Impairment
|
95 |
ARTICLE
12
SUBORDINATION
OF THE GUARANTEES
|
SECTION
12.01.
|
Agreement
to Subordinate
|
95 |
|
SECTION
12.02.
|
Liquidation,
Dissolution, Bankruptcy
|
95 |
|
SECTION
12.03.
|
Default
on Designated Senior Indebtedness of a Guarantor
|
95 |
|
SECTION
12.04.
|
Demand
for Payment
|
97 |
|
SECTION
12.05.
|
When
Distribution Must Be Paid Over
|
97 |
|
SECTION
12.06.
|
Subrogation
|
97 |
|
SECTION
12.07.
|
Relative
Rights
|
97 |
|
SECTION
12.08.
|
Subordination
May Not Be Impaired by a Guarantor
|
97 |
|
SECTION
12.09.
|
Rights
of Trustee and Paying Agent
|
97 |
|
SECTION
12.10.
|
Distribution
or Notice to Representative
|
98 |
|
SECTION
12.11.
|
Article
12 Not to Prevent Events of Default or Limit Right to
Accelerate
|
98 |
|
SECTION
12.12.
|
Trustee
Entitled to Rely
|
98 |
|
SECTION
12.13.
|
Trustee
to Effectuate Subordination
|
98 |
|
SECTION
12.14.
|
Trustee
Not Fiduciary for Holders of Senior Indebtedness of a
Guarantor
|
99 |
|
SECTION
12.15.
|
Reliance
by Holders of Senior Indebtedness of a Guarantor on Subordination
Provisions
|
99 |
|
SECTION
12.16.
|
Trust
Monies Not Subordinated
|
99 |
TRDOCS01/76765.8
-iv-
Article
13
MISCELLANEOUS
|
SECTION
13.01.
|
Trust
Indenture Act Controls
|
100 |
|
SECTION
13.02.
|
Notices
|
100 |
|
SECTION
13.03.
|
Communication
by the Holders with Other Holders
|
100 |
|
SECTION
13.04.
|
Certificate
and Opinion as to Conditions Precedent
|
101 |
|
SECTION
13.05.
|
Statements
Required in Certificate or Opinion
|
101 |
|
SECTION
13.06.
|
When
Securities Disregarded
|
101 |
|
SECTION
13.07.
|
Rules
by Trustee, Paying Agent and Registrar
|
101 |
|
SECTION
13.08.
|
Legal
Holidays
|
101 |
|
SECTION
13.09.
|
GOVERNING LAW
|
102 |
|
SECTION
13.10.
|
No
Recourse Against Others
|
102 |
|
SECTION
13.11.
|
Successors
|
102 |
|
SECTION
13.12.
|
Multiple
Originals
|
102 |
|
SECTION
13.13.
|
Table
of Contents; Headings
|
102 |
|
SECTION
13.14.
|
Indenture
Controls
|
102 |
|
SECTION
13.15.
|
Severability
|
102 |
Appendix
A - Provisions
Relating to Initial Securities, Additional Securities and
Exchange
Securities
EXHIBIT
INDEX
Exhibit
A - Initial
Security
Exhibit
B - Exchange
Security
Exhibit
C - Form
of
Transferee Letter of Representation
Exhibit
D - Form
of
Supplemental Indenture
TRDOCS01/76765.8
-v-
CROSS-REFERENCE
TABLE
TIA Indenture
Section Section
|
310
|
(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(b)
|
7.08;
7.10
|
|
|
(c)
|
N.A.
|
|
|
311
|
(a)
|
7.11
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
|
312
|
(a)
|
2.06
|
|
(b)
|
13.03
|
|
|
(c)
|
13.03
|
|
|
313
|
(a)
|
7.06
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
7.06
|
|
|
(c)
|
7.06
|
|
|
(d)
|
4.02;
4.09
|
|
|
314
|
(a)
|
4.02;
4.09
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
13.04
|
|
|
(c)(2)
|
13.04
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
13.05
|
|
|
(f)
|
4.10
|
|
|
315
|
(a)
|
7.01
|
|
(b)
|
7.05
|
|
|
(c)
|
7.01
|
|
|
(d)
|
7.01
|
|
|
(e)
|
6.11
|
|
|
316
|
(a)(last
sentence)
|
13.06
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.07
|
|
|
317
|
(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.05
|
|
|
318
|
(a)
|
13.01
|
N.A.
Means Not Applicable.
|
Note:
|
This
Cross-Reference Table shall not, for any purposes, be deemed to be
part of
this Indenture.
|
-vi-
INDENTURE
dated as of February 16, 2006 among COVALENCE SPECIALTY MATERIALS CORP., a
Delaware corporation (the “Company”), the Guarantors (as defined herein) and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee (the “Trustee”).
Each
party agrees as follows for the benefit of the other parties and for the equal
and ratable benefit of the Holders of (a) $265,000,000 aggregate principal
amount of the Company’s 10¼% Senior Subordinated Notes due March 1, 2016 (the
“Original Securities”) issued on the date hereof, (b) any Additional Securities
(as defined herein) that may be issued after the date hereof in the form of
Exhibit A (all such securities in clauses (a) and (b) being referred to
collectively as the “Initial Securities”) and (c) if and when issued as provided
in the Registration Agreement (as defined in Appendix A hereto (the “Appendix”))
or otherwise registered under the Securities Act and issued, the Company’s 10¼%
Senior Subordinated Notes due March 1, 2016 (the “Exchange Securities” and,
together with the Initial Securities, the “Securities”) issued in the Registered
Exchange Offer (as defined in the Appendix) in exchange for any Initial
Securities or otherwise registered under the Securities Act and issued in the
form of Exhibit B. Subject to the conditions and compliance with the covenants
set forth herein, the Company may issue an unlimited aggregate principal amount
of Additional Securities.
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01. Definitions
.
“Acquired
Indebtedness” means, with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Restricted Subsidiary of such specified Person,
and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Acquisition”
means the acquisition by the Company of all of the outstanding right, title
and
interests in and to the assets (other than certain excluded assets) of, and
all
of the issued and outstanding shares of capital stock or partnership interests,
as applicable, of, the Seller’s subsidiaries relating to the adhesives, coated
products and plastics businesses and L tape product line pursuant to the terms
of the Stock and Asset Purchase Agreement.
“Acquisition
Documents” means the Stock and Asset Purchase Agreement and any other document
entered into in connection therewith, in each case as amended, supplemented
or
modified from time to time.
“Additional
Securities” means 10¼% Senior Subordinated Notes due 2016 issued under the terms
of this Indenture subsequent to the Issue Date.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified
TRDOCS01/76765.8
-1-
Person.
For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or
policies of such Person, whether through the ownership of voting securities,
by
agreement or otherwise.
“Applicable
Premium” means, with respect to any Security on any applicable redemption date,
the greater of:
(1) 1%
of the
then outstanding principal amount of the Security; and
(2) the
excess of:
(a) the
present value at such redemption date of (i) the redemption price of the
Securities, at March 1, 2011 as set forth in Paragraph 5 of the applicable
Security plus (ii) all required interest payments due on such Security through
March 1, 2011 (excluding accrued but unpaid interest), computed using a discount
rate equal to the Treasury Rate as of such redemption date plus 50 basis points;
over
(b) the
then
outstanding principal amount of the Security.
“Asset
Sale” means:
(1) the
sale,
conveyance, transfer or other disposition (whether in a single transaction
or a
series of related transactions) of property or assets (including by way of
a
Sale/Leaseback Transaction) outside the ordinary course of business of the
Company or any Restricted Subsidiary of the Company (each referred to in this
definition as a “disposition”) or
(2) the
issuance or sale of Equity Interests (other than directors’ qualifying shares
and shares issued to foreign nationals or other third parties to the extent
required by applicable law) of any Restricted Subsidiary (other than to the
Company or another Restricted Subsidiary of the Company) (whether in a single
transaction or a series of related transactions),
in
each
case other than:
(a) a
disposition of Cash Equivalents or Investment Grade Securities or obsolete
or
worn out equipment in the ordinary course of business;
(b) the
disposition of all or substantially all of the assets of the Company in a manner
permitted pursuant to Section 5.01 or any disposition that constitutes a Change
of Control;
(c) any
Restricted Payment or Permitted Investment that is permitted to be made, and
is
made, under Section 4.04;
TRDOCS01/76765.8
-2-
(d) any
disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary, which assets or Equity Interests so disposed or issued have an
aggregate Fair Market Value of less than $7.5 million;
(e) any
disposition of property or assets, or the issuance of securities, by a
Restricted Subsidiary of the Company to the Company or by the Company or a
Restricted Subsidiary of the Company to a Restricted Subsidiary of the
Company;
(f) any
exchange of assets for assets related to a Similar Business of comparable or
greater market value, as determined in good faith by the Company, which in
the
event of an exchange of assets with a Fair Market Value in excess of (1) $7.5
million shall be evidenced by an Officers’ Certificate, and (2) $15 million
shall be set forth in a resolution approved in good faith by at least a majority
of the Board of Directors of the Company;
(g) foreclosure
on assets of the Company or any of its Restricted Subsidiaries;
(h) any
sale
of Equity Interests in, or Indebtedness or other securities of, an Unrestricted
Subsidiary;
(i) the
lease, assignment or sublease of any real or personal property in the ordinary
course of business;
(j) a
sale of
accounts receivable and related assets of the type specified in the definition
of “Receivables Financing” to a Receivables Subsidiary in a Qualified
Receivables Financing or in factoring or similar transactions;
(k) a
transfer of accounts receivable and related assets of the type specified in
the
definition of “Receivables Financing” (or a fractional undivided interest
therein) by a Receivables Subsidiary in a Qualified Receivables
Financing;
(l) the
grant
in the ordinary course of business of any licenses of patents, trademarks,
know-how and any other intellectual property; and
(m) the
sale
of any property in a Sale/Leaseback Transaction within six months of the
acquisition of such property.
“Bank
Indebtedness” means any and all amounts payable under or in respect of the
Credit Agreement and the other Senior Credit Documents as amended, restated,
supplemented, waived, replaced, restructured, repaid, refunded, refinanced
or
otherwise modified from time to time (including after termination of the Credit
Agreement), including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
TRDOCS01/76765.8
-3-
“Board
of
Directors” means, as to any Person, the board of directors or managers, as
applicable, of such Person (or, if such Person is a partnership, the board
of
directors or other governing body of the general partner of such Person) or
any
duly authorized committee thereof.
“Business
Day” means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law to close in New York
State.
“Capital
Stock” means:
(1) in
the
case of a corporation, corporate stock;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“Capitalized
Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a capital lease that would at such
time be required to be capitalized and reflected as a liability on a balance
sheet (excluding the footnotes thereto) in accordance with GAAP.
“Cash
Contribution Amount” means the aggregate amount of cash contributions made to
the capital of the Company described in the definition of “Contribution
Indebtedness.”
“Cash
Equivalents” means:
(1) U.S.
Dollars or, in the case of any Foreign Subsidiary that is a Restricted
Subsidiary, such local currencies held by it from time to time in the ordinary
course of business;
(2) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof in each case maturing,
unless such securities are deposited to defease any Indebtedness, not more
than
two years from the date of acquisition;
(3) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances, in each case
with maturities not exceeding one year and overnight bank deposits, in each
case
with any commercial bank having capital and surplus in excess of $250 million
and whose long-term debt is rated “A” or the equivalent thereof by Xxxxx’x or
S&P;
TRDOCS01/76765.8
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(4) repurchase
obligations for underlying securities of the types described in clauses (2)
and
(3) above entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial
paper issued by a corporation (other than an Affiliate of the Company) rated
at
least “A-1” or the equivalent thereof by Xxxxx’x or S&P and in each case
maturing within one year after the date of acquisition;
(6) readily
marketable direct obligations issued by any state of the United States of
America or any political subdivision thereof having one of the two highest
rating categories obtainable from either Xxxxx’x or S&P in each case with
maturities not exceeding two years from the date of acquisition;
(7) Indebtedness
issued by Persons (other than the Sponsors or any of their Affiliates) with
a
rating of “A” or higher from S&P or “A-2” or higher from Xxxxx’x in each
case with maturities not exceeding two years from the date of acquisition;
and
(8) investment
funds investing at least 95% of their assets in securities of the types
described in clauses (1) through (7) above.
“Change
of Control” means the occurrence of any of the following events:
(i) the
sale,
lease or transfer, in one or a series of related transactions, of all or
substantially all the assets of the Company and its Subsidiaries, taken as
a
whole, to a Person other than any of the Permitted Holders; or
(ii) the
Company becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise)
of
the acquisition by any Person or group (within the meaning of Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act, or any successor provision), including
any group acting for the purpose of acquiring, holding or disposing of
securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act),
other than any of the Permitted Holders, in a single transaction or in a related
series of transactions, by way of merger, consolidation or other business
combination or purchase of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act, or any successor provision), of more than 50%
of
the total voting power of the Voting Stock of the Company or any direct or
indirect parent of the Company; or
(iii) individuals
who on the Issue Date constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors
of
the Company or whose nomination for election by the shareholders of the Company
was approved by (a) a vote of a majority of the directors of the Company then
still in office who were either directors on the Issue Date or whose election
or
nomination for election was previously so approved or (b) the Permitted Holders)
cease for any reason to constitute a majority of the Board of Directors of
the
Company then in office.
“Code”
means the Internal Revenue Code of 1986, as amended.
TRDOCS01/76765.8
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“Company”
means the party named as such in the Preamble to this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes
of
any provision contained herein and required by the TIA, each other obligor
on
the Securities.
“consolidated”
means, with respect to any Person, such Person consolidated with its Restricted
Subsidiaries, and shall not include any Unrestricted Subsidiary, but the
interest of such Person in an Unrestricted Subsidiary shall be accounted for
as
an Investment.
“Consolidated
Interest Expense” means, with respect to any Person for any period, the sum,
without duplication, of:
(1) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
to the extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discount, the interest component
of
Capitalized Lease Obligations, and net payments and receipts (if any) pursuant
to interest rate Hedging Obligations and excluding amortization of deferred
financing fees and expensing of any bridge or other financing
fees);
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such
period, whether paid or accrued;
(3) commissions,
discounts, yield and other fees and charges Incurred in connection with any
Receivables Financing which are payable to Persons other than the Company and
its Restricted Subsidiaries; and
(4) less
interest income for such period.
“Consolidated
Net Income” means, with respect to any Person for any period, the aggregate of
the Net Income of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis; provided,
however,
that:
(1) any
net
after-tax extraordinary, nonrecurring or unusual gains or losses or income
or
expenses (less all fees and expenses relating thereto), including, without
limitation, any severance expenses, and fees, expenses or charges related to
any
Equity Offering, Permitted Investment, acquisition or Indebtedness permitted
to
be Incurred by this Indenture (in each case, whether or not successful),
including any such fees, expenses, charges or change in control payments made
under the Acquisition Documents or otherwise related to the Transactions, in
each case, shall be excluded;
(2) any
increase in amortization or depreciation or any one-time non-cash charges
resulting from purchase accounting (such as, without limitation, capitalized
profit inventory) in connection with the Transactions or any acquisition that
is
consummated after the Issue Date shall be excluded;
(3) the
Net
Income for such period shall not include the cumulative effect of a change
in
accounting principles during such period;
TRDOCS01/76765.8
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(4) any
net
after-tax income or loss from discontinued operations and any net after-tax
gains or losses on disposal of discontinued operations shall be
excluded;
(5) any
net
after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to business dispositions or asset dispositions other
than
in the ordinary course of business (as determined in good faith by the Board
of
Directors of the Company) shall be excluded;
(6) any
net
after-tax gains or losses (less all fees and expenses or charges relating
thereto) attributable to the early extinguishment of indebtedness shall be
excluded;
(7) the
Net
Income for such period of any Person that is not a Subsidiary of such Person,
or
is an Unrestricted Subsidiary, or that is accounted for by the equity method
of
accounting, shall be included only to the extent of the amount of dividends
or
distributions or other payments paid in cash (or to the extent converted into
cash) to the referent Person or a Restricted Subsidiary thereof in respect
of
such period;
(8) solely
for the purpose of determining the amount available for Restricted Payments
under clause (1) of the definition of Cumulative Credit, the Net Income for
such
period of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of its Net Income is not at the date of determination permitted
without any prior governmental approval (which has not been obtained) or,
directly or indirectly, by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, unless
such restrictions with respect to the payment of dividends or similar
distributions have been legally waived; provided
that the
Consolidated Net Income of such Person shall be increased by the amount of
dividends or other distributions or other payments actually paid in cash (or
converted into cash) by any such Restricted Subsidiary to such Person, to the
extent not already included therein;
(9) an
amount
equal to the amount of Tax Distributions actually made to any parent of such
Person in respect of such period in accordance with Section 4.04(b)(xii) shall
be included as though such amounts had been paid as income taxes directly by
such Person for such period;
(10) any
non-cash impairment charges resulting from the application of Statement of
Financial Accounting Standards Nos. 142 and 144 and the amortization of
intangibles arising pursuant to No. 141 shall be excluded;
(11) any
non-cash compensation expense realized from grants of stock appreciation or
similar rights, stock options or other rights to officers, directors and
employees of such Person or any of its Restricted Subsidiaries shall be
excluded;
(12) any
(a)
severance or relocation costs or expenses, (b) one-time non-cash compensation
charges, (c) the costs and expenses after the Issue Date related to employment
of terminated employees, (d) costs or expenses realized in connection
with,
TRDOCS01/76765.8
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resulting
from or in anticipation of the Transactions or (e) costs or expenses realized
in
connection with or resulting from stock appreciation or similar rights, stock
options or other rights existing on the Issue Date of officers, directors and
employees, in each case of such Person or any of its Restricted Subsidiaries,
shall be excluded;
(13) accruals
and reserves that are established within 12 months after the Issue Date and
that
are so required to be established in accordance with GAAP shall be
excluded;
(14) solely
for purposes of calculating EBITDA, (a) the Net Income of any Person and its
Restricted Subsidiaries shall be calculated without deducting the income
attributable to, or adding the losses attributable to, the minority equity
interests of third parties in any non-wholly-owned Restricted Subsidiary except
to the extent of dividends declared or paid in respect of such period or any
prior period on the shares of Capital Stock of such Restricted Subsidiary held
by such third parties and (b) any ordinary course dividend, distribution or
other payment paid in cash and received from any Person in excess of amounts
included in clause (7) above shall be included;
(15) (a)(i)
the non-cash portion of “straight-line” rent expense shall be excluded and (ii)
the cash portion of “straight-line” rent expense which exceeds the amount
expensed in respect of such rent expense shall be included and (b) non-cash
gains, losses, income and expenses resulting from fair value accounting required
by Statement of Financial Accounting Standards No. 133 shall be
excluded;
(16) unrealized
gains and losses relating to hedging transactions and xxxx-to-market of
Indebtedness denominated in foreign currencies resulting from the applications
of FAS 52 shall be excluded; and
(17) solely
for the purpose of calculating Restricted Payments, the difference, if positive,
of the Consolidated Taxes of the Company calculated in accordance with GAAP
and
the actual Consolidated Taxes paid in cash by the Company during any Reference
Period shall be included.
Notwithstanding
the foregoing, for the purpose of Section 4.04 only, there shall be excluded
from Consolidated Net Income any dividends, repayments of loans or advances
or
other transfers of assets from Unrestricted Subsidiaries of the Company or
a
Restricted Subsidiary of the Company to the extent such dividends, repayments
or
transfers increase the amount of Restricted Payments permitted under clauses
(D)
and (E) of the definition of “Cumulative Credit.”
“Consolidated
Non-cash Charges” means, with respect to any Person for any period, the
aggregate depreciation, amortization and other non-cash expenses of such Person
and its Restricted Subsidiaries reducing Consolidated Net Income of such Person
for such period on a consolidated basis and otherwise determined in accordance
with GAAP, but excluding any such charge which consists of or requires an
accrual of, or cash reserve for, anticipated cash charges for any future
period.
TRDOCS01/76765.8
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“Consolidated
Taxes” means provision for taxes based on income, profits or capital, including,
without limitation, state, franchise and similar taxes and any Tax Distributions
taken into account in calculating Consolidated Net Income.
“Contingent
Obligations” means, with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends or other obligations that do not constitute
Indebtedness (“primary obligations”) of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent:
(1) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor,
(2) to
advance or supply funds:
(a) for
the
purchase or payment of any such primary obligation; or
(b) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor; or
(3) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation against loss in respect
thereof.
“Contribution
Indebtedness” means Indebtedness of the Company or any Guarantor in an aggregate
principal amount not greater than twice the aggregate amount of cash
contributions (other than Excluded Contributions) made to the capital of the
Company after the Issue Date; provided
that:
(1) such
cash
contributions have not been used to make a Restricted Payment,
(2) if
the
aggregate principal amount of such Contribution Indebtedness is greater than
one
times such cash contributions to the capital of the Company, the amount in
excess shall be Indebtedness (other than Secured Indebtedness) with a Stated
Maturity later than the Stated Maturity of the Securities, and
(3) such
Contribution Indebtedness (a) is Incurred within 180 days after the making
of
such cash contributions and (b) is so designated as Contribution Indebtedness
pursuant to an Officers’ Certificate on the Incurrence date
thereof.
“Credit
Agreement” means (i) the credit agreement entered into in connection with, and
on or prior to, the consummation of the Acquisition, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), restructured, repaid, refunded,
refinanced or otherwise modified from time to time, including any agreement
or
indenture extending the maturity thereof, refinancing, replacing or otherwise
restructuring all or any portion of the Indebtedness under such agreement or
agreements or indenture or indentures or any successor or replacement agreement
or agreements or indenture or indentures or increasing the amount loaned or
issued thereunder or
TRDOCS01/76765.8
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altering
the maturity thereof, among the Company, Covalence Specialty Materials Holding
Corp., the financial institutions named therein, and Bank of America, N.A.,
as
Administrative Agent, and (ii) whether or not the credit agreement referred
to
in clause (i) remains outstanding, if designated by the Company to be included
in the definition of “Credit Agreement,” one or more (A) debt facilities or
commercial paper facilities, providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to lenders
or
to special purpose entities formed to borrow from lenders against such
receivables) or letters of credit, (B) debt securities, indentures or other
forms of debt financing (including convertible or exchangeable debt instruments
or bank guarantees or bankers’ acceptances), or (C) instruments or agreements
evidencing any other Indebtedness, in each case, with the same or different
borrowers or issuers and, in each case, as amended, supplemented, modified,
extended, restructured, renewed, refinanced, restated, replaced or refunded
in
whole or in part from time to time.
“Cumulative
Credit” means the sum of (without duplication):
(A) 50%
of
the Consolidated Net Income of the Company for the period (taken as one
accounting period, the “Reference Period”) from April 1, 2006 to the end of the
Company’s most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, in the
case
such Consolidated Net Income for such period is a deficit, minus 100% of such
deficit), plus
(B) 100%
of
the aggregate net proceeds, including cash and the Fair Market Value (as
determined in accordance with the next succeeding sentence) of property other
than cash, received by the Company after the Issue Date from the issue or sale
of Equity Interests of the Company (excluding Refunding Capital Stock,
Designated Preferred Stock, Excluded Contributions, Disqualified Stock and
the
Cash Contribution Amount), including Equity Interests issued upon conversion
of
Indebtedness or upon exercise of warrants or options (other than an issuance
or
sale to a Subsidiary of the Company or an employee stock ownership plan or
trust
established by the Company or any of its Subsidiaries), plus
(C) 100%
of
the aggregate amount of contributions to the capital of the Company received
in
cash and the Fair Market Value (as determined in accordance with the next
succeeding sentence) of property other than cash after the Issue Date (other
than Excluded Contributions, Refunding Capital Stock, Designated Preferred
Stock, Disqualified Stock and the Cash Contribution Amount), plus
(D) the
principal amount of any Indebtedness, or the liquidation preference or maximum
fixed repurchase price, as the case may be, of any Disqualified Stock of the
Company or any Restricted Subsidiary thereof issued after the Issue Date (other
than Indebtedness or Disqualified Stock issued to a Restricted Subsidiary)
which
has been converted into or exchanged for Equity Interests in the Company (other
than Disqualified Stock) or any direct or indirect parent of the Company
(provided in the case of any parent, such Indebtedness or Disqualified Stock
is
retired or extinguished), plus
TRDOCS01/76765.8
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(E) 100%
of
the aggregate amount received by the Company or any Restricted Subsidiary in
cash and the Fair Market Value (as determined in accordance with the next
succeeding sentence) of property other than cash received by the Company or
any
Restricted Subsidiary from:
(I) the
sale
or other disposition (other than to the Company or a Restricted Subsidiary
of
the Company) of Restricted Investments made by the Company and its Restricted
Subsidiaries and from repurchases and redemptions of such Restricted Investments
from the Company and its Restricted Subsidiaries by any Person (other than
the
Company or any of its Subsidiaries) and from repayments of loans or advances
which constituted Restricted Investments (other than in each case to the extent
that the Restricted Investment was made pursuant to clause (vii) or (x) of
Section 4.04(b)),
(II) the
sale
(other than to the Company or a Restricted Subsidiary of the Company) of the
Capital Stock of an Unrestricted Subsidiary, or
(III) a
distribution or dividend from an Unrestricted Subsidiary, plus
(F) in
the
event any Unrestricted Subsidiary of the Company has been redesignated as a
Restricted Subsidiary or has been merged, consolidated or amalgamated with
or
into, or transfers or conveys its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company, the Fair Market Value (as determined
in accordance with the next succeeding sentence) of the Investment of the
Company in such Unrestricted Subsidiary at the time of such redesignation,
combination or transfer (or of the assets transferred or conveyed, as
applicable), after taking into account any Indebtedness associated with the
Unrestricted Subsidiary so designated or combined or any Indebtedness associated
with the assets so transferred or conveyed (other than in each case to the
extent that the designation of such Subsidiary as an Unrestricted Subsidiary
was
made pursuant to clause (vii) or (x) of Section 4.04(b) or constituted a
Permitted Investment).
The
Fair
Market Value of property other than cash covered by clauses (B), (C), (D),
(E)
and (F) of this definition of “Cumulative Credit” shall be determined in good
faith by the Company and
(x) in
the
event of property with a Fair Market Value in excess of $7.5 million, shall
be
set forth in an Officers’ Certificate or
(y) in
the
event of property with a Fair Market Value in excess of $15 million, shall
be
set forth in a resolution approved by at least a majority of the Board of
Directors of the Company.
“Default”
means any event which is, or after notice or passage of time or both would
be,
an Event of Default.
“Designated
Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection
with
an Asset Sale that is so designated as Designated Non-cash Consideration
pursuant to an
TRDOCS01/76765.8
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Officers’
Certificate, setting forth the basis of such valuation, less the amount of
Cash
Equivalents received in connection with a subsequent sale of such Designated
Non-cash Consideration.
“Designated
Preferred Stock” means Preferred Stock of the Company or any direct or indirect
parent of the Company, as applicable (other than Disqualified Stock), that
is
issued for cash (other than to the Company or any of its Subsidiaries or an
employee stock ownership plan or trust established by the Company or any of
its
Subsidiaries) and is so designated as Designated Preferred Stock, pursuant
to an
Officers’ Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in clause (C) of the definition
of
“Cumulative Credit.”
“Designated
Senior Indebtedness” means, with respect to the Company or a Guarantor:
(1) the
Bank
Indebtedness;
(2) the
Floating Rate Loan; and
(3) any
other
Senior Indebtedness of the Company or such Guarantor which, at the date of
determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof are committed to lend up
to,
at least $25 million and is specifically designated by the Company or such
Guarantor in the instrument evidencing or governing such Senior Indebtedness
as
“Designated Senior Indebtedness” for purposes of this Indenture.
“Disqualified
Stock” means, with respect to any Person, any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is redeemable or exchangeable), or upon the
happening of any event:
(1) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than as a result of a change of control or asset sale; provided
that the
relevant asset sale or change of control provisions, taken as a whole, are
no
more favorable in any material respect to holders of such Capital Stock than
the
asset sale and change of control provisions applicable to the Securities and
any
purchase requirement triggered thereby may not become operative until compliance
with the asset sale and change of control provisions applicable to the
Securities (including the purchase of any Securities tendered pursuant
thereto)),
(2) is
convertible or exchangeable for Indebtedness or Disqualified Stock,
or
(3) is
redeemable at the option of the holder thereof, in whole or in
part,
in
each
case prior to 91 days after the maturity date of the Securities; provided,
however,
that
only the portion of Capital Stock which so matures or is mandatorily redeemable,
is so convertible or exchangeable or is so redeemable at the option of the
holder thereof prior to such date shall be deemed to be Disqualified Stock;
provided,
further,
however,
that if
such Capital Stock is issued to any employee or to any plan for the benefit
of
employees of the Company or
TRDOCS01/76765.8
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its
Subsidiaries or by any such plan to such employees, such Capital Stock shall
not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee’s termination, death or
disability; provided,
further,
that
any class of Capital Stock of such Person that by its terms authorizes such
Person to satisfy its obligations thereunder by delivery of Capital Stock that
is not Disqualified Stock shall not be deemed to be Disqualified
Stock.
“Domestic
Subsidiary” means a Restricted Subsidiary that is not a Foreign
Subsidiary.
“EBITDA”
means, with respect to any Person for any period, the Consolidated Net Income
of
such Person for such period plus, without duplication, to the extent the same
was deducted in calculating Consolidated Net Income:
(1) Consolidated
Taxes; plus
(2) Consolidated
Interest Expense; plus
(3) Consolidated
Non-cash Charges; plus
(4) business
optimization expenses and other restructuring charges; provided
that
with respect to each business optimization expense or other restructuring
charge, the Company shall have delivered to the Trustee an Officers’ Certificate
specifying and quantifying such expense or charge and stating that such expense
or charge is a business optimization expense or other restructuring charge,
as
the case may be; plus
(5) the
amount of management, monitoring, consulting and advisory fees and related
expenses paid to the Sponsors (or any accruals relating to such fees and related
expenses) during such period pursuant to the terms of the agreements between
the
Sponsors and the Company and its Subsidiaries as described with particularity
in
the Offering Memorandum and as in effect on the Issue Date;
less,
without duplication,
(6) non-cash
items increasing Consolidated Net Income for such period (excluding any items
which represent the reversal of any accrual of, or cash reserve for, anticipated
cash charges in any prior period and any items for which cash was received
in a
prior period).
“Equity
Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible
into,
or exchangeable for, Capital Stock).
“Equity
Offering” means any public or private sale after the Issue Date of common stock
or Preferred Stock of the Company or any direct or indirect parent of the
Company, as applicable (other than Disqualified Stock), other than:
TRDOCS01/76765.8
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(1) public
offerings with respect to the Company’s or such direct or indirect parent’s
common stock registered on Form S-8; and
(2) any
such
public or private sale that constitutes an Excluded Contribution.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“Exchange
Offer Registration Statement” means the registration statement filed with the
SEC in connection with the Registered Exchange Offer.
“Excluded
Contributions” means the net cash proceeds received by the Company after the
Issue Date from:
(1) contributions
to its common equity capital, and
(2) the
sale
(other than to a Subsidiary of the Company or to any Subsidiary management
equity plan or stock option plan or any other management or employee benefit
plan or agreement) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Company,
in
each
case designated as Excluded Contributions pursuant to an Officers’ Certificate
on or promptly after the date such capital contributions are made or the date
such Capital Stock is sold, as the case may be, the cash proceeds of which
are
excluded from the calculation set forth in clause (C) of the definition of
“Cumulative Credit.”
“Fair
Market Value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
“Fixed
Charge Coverage Ratio” means, with respect to any Person for any period, the
ratio of EBITDA of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the Company or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness (other than in the case of
revolving credit borrowings or revolving advances under any Qualified
Receivables Financing, in which case interest expense shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period) or issues or redeems Preferred Stock subsequent to the commencement
of
the period for which the Fixed Charge Coverage Ratio is being calculated but
prior to the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such Incurrence or redemption of
Indebtedness, or such issuance or redemption of Preferred Stock, as if the
same
had occurred at the beginning of the applicable four-quarter
period.
For
purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and discontinued operations (as determined
in accordance with GAAP), in each case with respect to an operating unit of
a
business, and any operational changes that the Company or any of its Restricted
Subsidiaries has both determined
TRDOCS01/76765.8
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to
make
and made after the Issue Date and during the four-quarter reference period
or
subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date (each, for purposes of this definition, a “pro forma
event”) shall be calculated on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, mergers, consolidations and
discontinued operations (and the change of any associated fixed charge
obligations and the change in EBITDA resulting therefrom) had occurred on the
first day of the four-quarter reference period. If since the beginning of such
period any Person that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the beginning of
such period shall have made any Investment, acquisition, disposition, merger,
consolidation, discontinued operation or operational change, in each case with
respect to an operating unit of a business, that would have required adjustment
pursuant to this definition, then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, discontinued operation, merger,
consolidation or operational change had occurred at the beginning of the
applicable four-quarter period.
For
purposes of this definition, whenever pro forma effect is to be given to any
pro
forma event, the pro forma calculations shall be made in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest on such Indebtedness shall be calculated as if the rate in effect
on
the Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligations applicable to such Indebtedness if such
Hedging Obligation has a remaining term in excess of 12 months). Interest on
a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP. For purposes of making the computation referred to
above, interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily balance
of
such Indebtedness during the applicable period. Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rate, shall
be
deemed to have been based upon the rate actually chosen, or, if none, then
based
upon such optional rate chosen as the Company may designate. Any such pro forma
calculation may include adjustments appropriate, in the reasonable good faith
determination of the Company as set forth in an Officers’ Certificate, to
reflect (1) operating expense reductions and other operating improvements or
synergies reasonably expected to result from the applicable pro forma event
(including, to the extent applicable, from the Transactions) and (2) all
adjustments of the nature used in connection with the calculation of “Adjusted
EBITDA” as set forth in footnote 4 to the “Summary Historical and Pro Forma
Combined Financial Data” under “Summary” in the Offering Memorandum to the
extent such adjustments, without duplication, continue to be applicable to
such
four-quarter period.
“Fixed
Charges” means, with respect to any Person for any period, the sum
of:
(1) Consolidated
Interest Expense of such Person for such period, and
TRDOCS01/76765.8
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(2) all
cash
dividend payments (excluding items eliminated in consolidation) on any series
of
Preferred Stock or Disqualified Stock of such Person and its Restricted
Subsidiaries.
“Floating
Rate Guarantee” means the guarantee of the Floating Rate Loan by certain
Subsidiaries of the Company as described in the Offering
Memorandum.
“Floating
Rate Guarantor” means any Person that Incurs a Floating Rate Guarantee;
provided
that
upon the release or discharge of such Person from its Floating Rate Guarantee
in
accordance with the Floating Rate Loan, such Person ceases to be a Floating
Rate
Guarantor.
“Floating
Rate Loan” means the second-priority senior secured floating rate loan among the
Company, certain Subsidiaries of the Company, the financial institutions named
therein, and Bank of America, N.A., as Administrative Agent providing for $175.0
million of loans, as amended, restated, supplemented, waived, replaced (whether
or not upon termination, and whether with the original lenders or otherwise),
restructured, repaid, refunded, refinanced or otherwise modified from time
to
time, including any agreement or indenture extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreements or indenture or indentures
or
any successor or replacement agreement or agreements or indenture.
“Foreign
Subsidiary” means a Restricted Subsidiary not organized or existing under the
laws of the United States of America or any state or territory thereof and
any
direct or indirect subsidiary of such Restricted Subsidiary.
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
have been approved by a significant segment of the accounting profession, which
are in effect on the Issue Date.
“Guarantee”
means any guarantee of the obligations of the Company under this Indenture
and
the Securities by any Person in accordance with the provisions of this
Indenture.
“guarantee”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof), of all or any part of any Indebtedness or other
obligations.
“Guarantor”
means any Person that Incurs a Guarantee; provided
that
upon the release or discharge of such Person from its Guarantee in accordance
with this Indenture, such Person ceases to be a Guarantor.
“Hedging
Obligations” means, with respect to any Person, the obligations of such Person
under:
TRDOCS01/76765.8
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(1) currency
exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate
or commodity collar agreements; and
(2) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates or commodity prices.
“Holder”
means the Person in whose name a Security is registered on the Registrar’s
books.
“Incur”
means issue, assume, guarantee, incur or otherwise become liable for;
provided,
however,
that
any Indebtedness or Capital Stock of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes
a Subsidiary.
“Indebtedness”
means, with respect to any Person:
(1) the
principal and premium (if any) of any indebtedness of such Person, whether
or
not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes,
debentures or similar instruments or letters of credit or bankers’ acceptances
(or, without duplication, reimbursement agreements in respect thereof), (c)
representing the deferred and unpaid purchase price of any property, except
any
such balance that constitutes a trade payable or similar obligation to a trade
creditor due within six months from the date on which it is Incurred, in each
case Incurred in the ordinary course of business, which purchase price is due
more than six months after the date of placing the property in service or taking
delivery and title thereto, (d) in respect of Capitalized Lease Obligations,
or
(e) representing any Hedging Obligations, if and to the extent that any of
the
foregoing indebtedness (other than letters of credit and Hedging Obligations)
would appear as a liability on a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP;
(2) to
the
extent not otherwise included, any obligation of such Person to be liable for,
or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another
Person (other than by endorsement of negotiable instruments for collection
in
the ordinary course of business);
(3) to
the
extent not otherwise included, Indebtedness of another Person secured by a
Lien
on any asset owned by such Person (whether or not such Indebtedness is assumed
by such Person); provided,
however,
that
the amount of such Indebtedness will be the lesser of: (a) the Fair Market
Value
of such asset at such date of determination, and (b) the amount of such
Indebtedness of such other Person; and
(4) to
the
extent not otherwise included, with respect to the Company and its Restricted
Subsidiaries, the amount then outstanding (i.e.,
advanced, and received by, and available for use by, the Company or any of
its
Restricted Subsidiaries) under any Receivables Financing (as set forth in the
books and records of the Company or any Restricted Subsidiary and confirmed
by
the agent, trustee or other representative of the institution or group providing
such Receivables Financing);
TRDOCS01/76765.8
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provided,
however,
that
notwithstanding the foregoing, Indebtedness shall be deemed not to include
(1)
Contingent Obligations incurred in the ordinary course of business and not
in
respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price
holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller; (4)
Obligations under or in respect of Qualified Receivables Financing or (5)
obligations under the Acquisition Documents.
“Indenture”
means this Indenture as amended or supplemented from time to time.
“Independent
Financial Advisor” means an accounting, appraisal or investment banking firm or
consultant, in each case of nationally recognized standing, that is, in the
good
faith determination of the Company, qualified to perform the task for which
it
has been engaged.
“Investment
Grade Securities” means:
(1) securities
issued or directly and fully guaranteed or insured by the U.S. government or
any
agency or instrumentality thereof (other than Cash Equivalents),
(2) investments
in any fund that invests exclusively in investments of the type described in
clause (1) which fund may also hold immaterial amounts of cash pending
investment and/or distribution, and
(3) corresponding
instruments in countries other than the United States customarily utilized
for
high quality investments and in each case with maturities not exceeding two
years from the date of acquisition.
“Investments”
means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the form of loans (including guarantees),
advances or capital contributions (excluding accounts receivable, trade credit
and advances to customers and commission, travel and similar advances to
officers, employees and consultants made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities issued by any other Person and investments that
are required by GAAP to be classified on the balance sheet of the Company in
the
same manner as the other investments included in this definition to the extent
such transactions involve the transfer of cash or other property. For purposes
of the definition of “Unrestricted Subsidiary” and Section 4.04:
(1) “Investments”
shall include the portion (proportionate to the Company’s equity interest in
such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary
of
the Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided,
however,
that
upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company
shall be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary equal to an amount (if positive) equal to:
(a) the
Company’s “Investment” in such Subsidiary at the time of such redesignation
less
TRDOCS01/76765.8
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(b) the
portion (proportionate to the Company’s equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation; and
(2) any
property transferred to or from an Unrestricted Subsidiary shall be valued
at
its Fair Market Value at the time of such transfer, in each case as determined
in good faith by the Board of Directors of the Company.
“Issue
Date” means February 16, 2006, the date on which the Original Securities are
issued.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest
in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction); provided
that in
no event shall an operating lease be deemed to constitute a Lien.
“Management
Group” means the group consisting of the directors, executive officers and other
management personnel of the Company or any direct or indirect parent of the
Company, as the case may be, on the Issue Date together with (1) any new
directors whose election by such boards of directors or whose nomination for
election by the shareholders of the Company or any direct or indirect parent
of
the Company, as applicable, was approved by a vote of a majority of the
directors of the Company or any direct or indirect parent of the Company, as
applicable, then still in office who were either directors on the Issue Date
or
whose election or nomination was previously so approved and (2) executive
officers and other management personnel of the Company or any direct or indirect
parent of the Company, as applicable, hired at a time when the directors on
the
Issue Date together with the directors so approved constituted a majority of
the
directors of the Company or any direct or indirect parent of the Company, as
applicable.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor to the rating agency
business thereof.
“Net
Income” means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of
Preferred Stock dividends.
“Net
Proceeds” means the aggregate cash proceeds received by the Company or any of
its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received in respect of or upon the sale or other
disposition of any Designated Non-cash Consideration received in any Asset
Sale
and any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or otherwise, but only as and when received,
but excluding the assumption by the acquiring Person of Indebtedness relating
to
the disposed assets or other consideration received in any other non-cash form),
net of the direct costs relating to such Asset Sale and the sale or disposition
of such Designated Non-cash
TRDOCS01/76765.8
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Consideration
(including, without limitation, legal, accounting and investment banking fees,
and brokerage and sales commissions), and any relocation expenses Incurred
as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing arrangements
related thereto), amounts required to be applied to the repayment of principal,
premium (if any) and interest on Indebtedness required (other than pursuant
to
Section 4.06(b)(i)) to be paid as a result of such transaction, and any
deduction of appropriate amounts to be provided by the Company as a reserve
in
accordance with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Company after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
“Obligations”
means any principal, interest, penalties, fees, indemnifications, reimbursements
(including, without limitation, reimbursement obligations with respect to
letters of credit and bankers’ acceptances), damages and other liabilities
payable under the documentation governing any Indebtedness; provided
that
Obligations with respect to the Securities shall not include fees or
indemnifications in favor of the Trustee and other third parties other than
the
Holders of the Securities.
“Offering
Memorandum” means the offering memorandum relating to the offering of the
Original Securities dated February 2, 2006.
“Officer”
means the Chairman of the Board, Chief Executive Officer, President, any
Executive Vice President, Senior Vice President or Vice President, the Treasurer
or the Secretary of the Company.
“Officers’
Certificate” means a certificate signed on behalf of the Company by two Officers
of the Company, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer
of the Company that meets the requirements set forth in this
Indenture;
provided, however, that in the case of any Officers' Certificate that is dated
the date hereof, only one Officer shall be required to sign such Officers'
Certificate.
“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company or the
Trustee.
“Pari
Passu Indebtedness” means:
(1) with
respect to the Company, the Securities and any Indebtedness which ranks pari
passu in right of payment to the Securities; and
(2) with
respect to any Guarantor, its Guarantee and any Indebtedness which ranks pari
passu in right of payment to such Guarantor’s Guarantee.
“Permitted
Holders” means, at any time, each of (i) the Sponsors and (ii) the Management
Group. Any person or group whose acquisition of beneficial ownership
constitutes
TRDOCS01/76765.8
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a
Change
of Control in respect of which a Change of Control Offer is made in accordance
with the requirements of this Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.
“Permitted
Investments” means:
(1) any
Investment in the Company or any Restricted Subsidiary;
(2) any
Investment in Cash Equivalents or Investment Grade Securities;
(3) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person that is primarily engaged in a Similar Business if as a result of such
Investment (a) such Person becomes a Restricted Subsidiary of the Company,
or
(b) such Person, in one transaction or a series of related transactions, is
merged, consolidated or amalgamated with or into, or transfers or conveys all
or
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;
(4) any
Investment in securities or other assets not constituting Cash Equivalents
and
received in connection with an Asset Sale made pursuant to the provisions of
Section 4.06 or any other disposition of assets not constituting an Asset
Sale;
(5) any
Investment existing on the Issue Date;
(6) advances
to employees not in excess of $15 million outstanding at any one time in the
aggregate;
(7) any
Investment acquired by the Company or any of its Restricted Subsidiaries (a)
in
exchange for any other Investment or accounts receivable held by the Company
or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such
other Investment or accounts receivable, or (b) as a result of a foreclosure
by
the Company or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment
in
default;
(8) Hedging
Obligations permitted under Section 4.03(b)(x);
(9) any
Investment by the Company or any of its Restricted Subsidiaries in a Similar
Business (other than an Investment in an Unrestricted Subsidiary or any direct
or indirect parent of the Company) having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (9), not to
exceed the greater of (x) $50.0 million and (y) 6.5% of Total Assets at the
time
of such Investment (with the Fair Market Value of each Investment being measured
at the time made and without giving effect to subsequent changes in value);
provided,
however,
that if
any Investment pursuant to this clause (9) is made in any Person that is not
a
Restricted Subsidiary of the Company at the date of the making of such
Investment and such Person becomes a Restricted Subsidiary of the Company after
such date, such Investment shall thereafter be deemed to have been made pursuant
to clause (1) above and shall cease to have been
TRDOCS01/76765.8
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made
pursuant to this clause (9) for so long as such Person continues to be a
Restricted Subsidiary;
(10) additional
Investments by the Company or any of its Restricted Subsidiaries having an
aggregate Fair Market Value, taken together with all other Investments made
pursuant to this clause (10), not to exceed the greater of (x) $50.0 million
and
(y) 6.5% of Total Assets at the time of such Investment (with the Fair Market
Value of each Investment being measured at the time made and without giving
effect to subsequent changes in value);
(11) loans
and
advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case Incurred
in
the ordinary course of business;
(12) Investments
the payment for which consists of Equity Interests of the Company (other than
Disqualified Stock) or any direct or indirect parent of the Company, as
applicable; provided,
however,
that
such Equity Interests will not increase the amount available for Restricted
Payments under clause (C) of the definition of “Cumulative Credit”;
(13) any
transaction to the extent it constitutes an Investment that is permitted by
and
made in accordance with the provisions of Section 4.07(b) (except transactions
described in clauses (ii), (vi), (vii) and (xi)(b) of such
Section);
(14) Investments
consisting of the licensing or contribution of intellectual property pursuant
to
joint marketing arrangements with other Persons;
(15) guarantees
issued in accordance with Sections 4.03 and 4.11;
(16) Investments
consisting of purchases and acquisitions of inventory, supplies, materials
and
equipment or purchases of contract rights or licenses or leases of intellectual
property, in each case in the ordinary course of business;
(17) any
Investment in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person in connection with a Qualified Receivables
Financing, including Investments of funds held in accounts permitted or required
by the arrangements governing such Qualified Receivables Financing or any
related Indebtedness; provided,
however,
that
any Investment in a Receivables Subsidiary is in the form of a Purchase Money
Note, contribution of additional receivables or an equity interest;
(18) additional
Investments in joint ventures of the Company or any of its Restricted
Subsidiaries existing on the Issue Date not to exceed $15 million at any one
time; and
(19) Investments
of a Restricted Subsidiary of the Company acquired after the Issue Date or
of an
entity merged into, amalgamated with, or consolidated with a Restricted
Subsidiary of the Company in a transaction that is not prohibited by
Section
TRDOCS01/76765.8
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5.01
after the Issue Date to the extent that such Investments were not made in
contemplation of such acquisition, merger, amalgamation or consolidation and
were in existence on the date of such acquisition, merger, amalgamation or
consolidation.
“Permitted
Junior Securities” shall mean unsecured debt or equity securities of the Company
or any Guarantor or any successor corporation issued pursuant to a plan of
reorganization or readjustment of the Company or any Guarantor, as applicable,
that are subordinated to the payment of all then outstanding Senior Indebtedness
of the Company or any Guarantor, as applicable, at least to the same extent
that
the Securities are subordinated to the payment of all Senior Indebtedness of
the
Company or any Guarantor, as applicable, on the Issue Date, so long as to the
extent that any Senior Indebtedness of the Company or any Guarantor, as
applicable, outstanding on the date of consummation of any such plan of
reorganization or readjustment is not paid in full in cash on such date, the
holders of any such Senior Indebtedness not so paid in full in cash have
consented to the terms of such plan of reorganization or
readjustment.
“Permitted
Liens” means, with respect to any Person:
(1) pledges
or deposits by such Person under workmen’s compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection
with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits
as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business;
(2) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each
case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an appeal
or other proceedings for review;
(3) Liens
for
taxes, assessments or other governmental charges not yet due or payable or
subject to penalties for nonpayment or which are being contested in good faith
by appropriate proceedings;
(4) Liens
in
favor of issuers of performance and surety bonds or bid bonds or with respect
to
other regulatory requirements or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business;
(5) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as
to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred
in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use
in
the operation of the business of such Person;
TRDOCS01/76765.8
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(6) (A)
Liens
securing Senior Indebtedness, and Liens on assets of a Restricted Subsidiary
that is not a Guarantor securing Indebtedness of such Restricted Subsidiary,
in
each case permitted to be Incurred pursuant to Section 4.03 and (B) Liens
securing Indebtedness permitted to be Incurred pursuant to clause (iv), (xii)
or
(xx) of Section 4.03(b) (provided
that in
the case of clause (xx), such Lien does not extend to the property or assets
of
any Subsidiary of the Company other than a Foreign Subsidiary) of Section
4.03(b);
(7) Liens
existing on the Issue Date;
(8) Liens
on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided,
however,
that
such Liens are not created or Incurred in connection with, or in contemplation
of, such other Person becoming such a Subsidiary; provided,
further,
however,
that
such Liens may not extend to any other property owned by the Company or any
Restricted Subsidiary of the Company;
(9) Liens
on
property at the time the Company or a Restricted Subsidiary of the Company
acquired the property, including any acquisition by means of a merger or
consolidation with or into the Company or any Restricted Subsidiary of the
Company; provided,
however,
that
such Liens are not created or Incurred in connection with, or in contemplation
of, such acquisition; provided,
further,
however,
that
the Liens may not extend to any other property owned by the Company or any
Restricted Subsidiary of the Company;
(10) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing
to
the Company or another Restricted Subsidiary of the Company permitted to be
Incurred in accordance with Section 4.03;
(11) Liens
securing Hedging Obligations not incurred in violation of this Indenture;
provided
that
with respect to Hedging Obligations relating to Indebtedness, such Lien extends
only to the property securing such Indebtedness;
(12) Liens
on
specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
(13) leases
and subleases of real property which do not materially interfere with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries;
(14) Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries
in
the ordinary course of business;
(15) Liens
in
favor of the Company or any Guarantor;
TRDOCS01/76765.8
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(16) Liens
on
accounts receivable and related assets of the type specified in the definition
of “Receivables Financing” Incurred in connection with a Qualified Receivables
Financing;
(17) deposits
made in the ordinary course of business to secure liability to insurance
carriers;
(18) Liens
on
the Equity Interests of Unrestricted Subsidiaries;
(19) grants
of
software and other technology licenses in the ordinary course of
business;
(20) Liens
to
secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements)
as a
whole, or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clauses (6)(B), (7), (8), (9), (10), (11) and (15); provided,
however,
that
(x) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property), and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (6)(B), (7), (8),
(9), (10), (11) and (15) at the time the original Lien became a Permitted Lien
under this Indenture, and (B) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal
or replacement;
(21) Liens
on
equipment of the Company or any Restricted Subsidiary granted in the ordinary
course of business to the Company’s or such Restricted Subsidiary’s client at
which such equipment is located; and
(22) other
Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $20 million at any one time outstanding.
“Person”
means any individual, corporation, partnership, limited liability company,
joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other
entity.
“Preferred
Stock” means any Equity Interest with preferential right of payment of dividends
or upon liquidation, dissolution, or winding up.
“Purchase
Money Note” means a promissory note of a Receivables Subsidiary evidencing a
line of credit, which may be irrevocable, from the Company or any Subsidiary
of
the Company to a Receivables Subsidiary in connection with a Qualified
Receivables Financing, which note is intended to finance that portion of the
purchase price that is not paid by cash or a contribution of
equity.
“Qualified
Receivables Financing” means any Receivables Financing of a Receivables
Subsidiary that meets the following conditions:
TRDOCS01/76765.8
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(1) the
Board
of Directors of the Company shall have determined in good faith that such
Qualified Receivables Financing (including financing terms, covenants,
termination events and other provisions) is in the aggregate economically fair
and reasonable to the Company and the Receivables Subsidiary;
(2) all
sales
of accounts receivable and related assets to the Receivables Subsidiary are
made
at Fair Market Value (as determined in good faith by the Company);
and
(3) the
financing terms, covenants, termination events and other provisions thereof
shall be market terms (as determined in good faith by the Company) and may
include Standard Securitization Undertakings.
The
grant
of a security interest in any accounts receivable of the Company or any of
its
Restricted Subsidiaries (other than a Receivables Subsidiary) to secure Bank
Indebtedness shall not be deemed a Qualified Receivables Financing.
“Receivables
Fees” means distributions or payments made directly or by means of discounts
with respect to any participation interests issued or sold in connection with,
and all other fees paid to a Person that is not a Restricted Subsidiary in
connection with, any Receivables Financing.
“Receivables
Financing” means any transaction or series of transactions that may be entered
into by the Company or any of its Subsidiaries pursuant to which the Company
or
any of its Subsidiaries may sell, convey or otherwise transfer to (a) a
Receivables Subsidiary (in the case of a transfer by the Company or any of
its
Subsidiaries); and (b) any other Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or
any
of its Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable, all contracts
and
all guarantees or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted
in
connection with asset securitization transactions involving accounts receivable
and any Hedging Obligations entered into by the Company or any such Subsidiary
in connection with such accounts receivable.
“Receivables
Repurchase Obligation” means any obligation of a seller of receivables in a
Qualified Receivables Financing to repurchase receivables arising as a result
of
a breach of a representation, warranty or covenant or otherwise, including
as a
result of a receivable or portion thereof becoming subject to any asserted
defense, dispute, off-set or counterclaim of any kind as a result of any action
taken by, any failure to take action by or any other event relating to the
seller.
“Receivables
Subsidiary” means a Wholly Owned Restricted Subsidiary of the Company (or
another Person formed for the purposes of engaging in Qualified Receivables
Financing with the Company in which the Company or any Subsidiary of the Company
makes an Investment and to which the Company or any Subsidiary of the Company
transfers accounts
TRDOCS01/76765.8
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receivable
and related assets) which engages in no activities other than in connection
with
the financing of accounts receivable of the Company and its Subsidiaries, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related
to
such business, and which is designated by the Board of Directors of the Company
(as provided below) as a Receivables Subsidiary and:
(a) no
portion of the Indebtedness or any other obligations (contingent or otherwise)
of which (i) is guaranteed by the Company or any other Subsidiary of the Company
(excluding guarantees of obligations (other than the principal of and interest
on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates the Company or any other Subsidiary of the Company
in
any way other than pursuant to Standard Securitization Undertakings, or (iii)
subjects any property or asset of the Company or any other Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization
Undertakings;
(b) with
which neither the Company nor any other Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
which the Company reasonably believes to be no less favorable to the Company
or
such Subsidiary than those that might be obtained at the time from Persons
that
are not Affiliates of the Company; and
(c) to
which
neither the Company nor any other Subsidiary of the Company has any obligation
to maintain or preserve such entity’s financial condition or cause such entity
to achieve certain levels of operating results.
Any
such
designation by the Board of Directors of the Company shall be evidenced to
the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the
foregoing conditions.
“Representative”
means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness or Designated Senior Indebtedness, as applicable; provided
that if,
and for so long as, such Senior Indebtedness lacks such a Representative, then
the Representative for such Senior Indebtedness shall at all times constitute
the holder or holders of a majority in outstanding principal amount of
obligations under such Senior Indebtedness.
“Restricted
Investment” means an Investment other than a Permitted Investment.
“Restricted
Subsidiary” means, with respect to any Person, any Subsidiary of such Person
other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated
in this Indenture, all references to Restricted Subsidiaries shall mean
Restricted Subsidiaries of the Company.
“Sale/Leaseback
Transaction” means an arrangement relating to property now owned or hereafter
acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or
such
TRDOCS01/76765.8
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Restricted
Subsidiary leases it from such Person, other than leases between the Company
and
a Restricted Subsidiary of the Company or between Restricted Subsidiaries of
the
Company.
“S&P”
means Standard & Poor’s Ratings Group or any successor to the rating agency
business thereof.
“SEC”
means the Securities and Exchange Commission.
“Secured
Indebtedness” means any Indebtedness secured by a Lien.
“Securities”
means the securities issued under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Seller”
means Tyco Group S.a.r.l., a Luxembourg company.
“Senior
Credit Documents” means the collective reference to the Credit Agreement, the
notes issued pursuant thereto and the guarantees thereof, and the collateral
documents relating thereto, as amended, supplemented, restated, renewed,
refunded, replaced, restructured, repaid, refinanced or otherwise modified
from
time to time.
“Senior
Indebtedness” with respect to the Company or any of its Restricted Subsidiaries
means all Indebtedness and any Receivables Repurchase Obligation of the Company
or any such Restricted Subsidiary, including interest thereon (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Restricted Subsidiary of the
Company at the rate specified in the documentation with respect thereto whether
or not a claim for post-filing interest is allowed in such proceeding) and
other
amounts (including fees, expenses, reimbursement obligations under letters
of
credit and indemnities) owing in respect thereof, whether outstanding on the
Issue Date or thereafter Incurred, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such obligations are subordinated in right of payment to any
other
Indebtedness of the Company or such Restricted Subsidiary, as applicable;
provided,
however,
that
Senior Indebtedness shall not include, as applicable:
(1) any
obligation of the Company to any Subsidiary of the Company (other than any
Receivables Repurchase Obligation) or of any Subsidiary of the Company to the
Company, or of any Subsidiary to the Company or any other Subsidiary of the
Company,
(2) any
liability for Federal, state, local or other taxes owed or owing by the Company
or such Restricted Subsidiary,
(3) any
accounts payable or other liability to trade creditors (including guarantees
thereof or instruments evidencing such liabilities),
(4) any
Indebtedness or obligation of the Company or any Restricted Subsidiary which
is
subordinate or junior in any respect to any other Indebtedness or
TRDOCS01/76765.8
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obligation
of the Company or such Restricted Subsidiary, as applicable, including any
Pari
Passu Indebtedness and any Subordinated Indebtedness,
(5) any
obligations with respect to any Capital Stock, or
(6) any
Indebtedness Incurred in violation of this Indenture but, as to any such
Indebtedness Incurred under the Credit Agreement, no such violation shall be
deemed to exist for purposes of this clause (6) if the holders of such
Indebtedness or their Representative shall have received an Officers’
Certificate to the effect that the Incurrence of such Indebtedness does not
(or,
in the case of a revolving credit facility thereunder, the Incurrence of the
entire committed amount thereof at the date on which the initial borrowing
thereunder is made would not) violate this Indenture.
If
any
Senior Indebtedness is disallowed, avoided or subordinated pursuant to the
provisions of Section 548 of Title 11 of the United States Code or any
applicable state fraudulent conveyance law, such Senior Indebtedness
nevertheless will constitute Senior Indebtedness.
For
the
avoidance of doubt, the term “Senior Indebtedness” shall include, without
limitation, the Floating Rate Loan.
“Significant
Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X
promulgated by the SEC.
“Similar
Business” means a business, the majority of whose revenues are derived from the
activities of the Company and its Subsidiaries as of the Issue Date or any
business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof or ancillary thereto.
“Sponsors”
means (1) one or more investment funds controlled by Apollo Management, L.P.
and
its Affiliates (collectively, the “Apollo Sponsors”) and (2) any Person that
forms a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the
Exchange Act, or any successor provision) with any Apollo Sponsors, provided
that any
Apollo Sponsor (x) owns a majority of the voting power and (y) controls a
majority of the Board of Directors of the Company.
“Standard
Securitization Undertakings” means representations, warranties, covenants,
indemnities and guarantees of performance entered into by the Company or any
Subsidiary of the Company which the Company has determined in good faith to
be
customary in a Receivables Financing including without limitation, those
relating to the servicing of the assets of a Receivables Subsidiary, it being
understood that any Receivables Repurchase Obligation shall be deemed to be
a
Standard Securitization Undertaking.
“Stated
Maturity” means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the
TRDOCS01/76765.8
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happening
of any contingency beyond the control of the issuer unless such contingency
has
occurred).
“Stock
and Asset Purchase Agreement” means the Stock and Asset Purchase Agreement,
dated as of December 20, 2005, among the Seller, Covalence Specialty Materials
Holding Corp. and Tyco International Group S.A., a Luxembourg corporation,
as
amended, supplemented or modified from time to time.
“Subordinated
Indebtedness” means (a) with respect to the Company, any Indebtedness of the
Company which is by its terms subordinated in right of payment to the
Securities, and (b) with respect to any Guarantor, any Indebtedness of such
Guarantor which is by its terms subordinated in right of payment to its
Guarantee.
“Subsidiary”
means, with respect to any Person, (1) any corporation, association or other
business entity (other than a partnership, joint venture or limited liability
company) of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote
in
the election of directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by such Person or
one
or more of the other Subsidiaries of that Person or a combination thereof,
and
(2) any partnership, joint venture or limited liability company of which (x)
more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general and limited partnership interests, as applicable,
are owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person or a combination thereof, whether
in
the form of membership, general, special or limited partnership interests or
otherwise, and (y) such Person or any Restricted Subsidiary of such Person
is a
controlling general partner or otherwise controls such entity.
“Tax
Distributions” means any distributions described in Section
4.04(b)(xii).
“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as
in
effect on the date of this Indenture.
“Total
Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, as shown on the most recent balance sheet of the
Company.
“Transactions”
means the Acquisition and the transactions related thereto, the issuance of
the
Securities, and borrowings made pursuant to the Credit Agreement and the
Floating Rate Loan and, to the extent applicable, funding in a Receivables
Financing on the Issue Date.
“Treasury
Rate” means, as of the applicable redemption date, the yield to maturity as of
such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least
two
business days prior to such redemption date (or, if such Statistical Release
is
no longer published, any publicly available source of similar market data))
most
nearly equal to the period from such redemption date to March 1, 2011;
provided,
however,
that if
the period from such redemption date to March 1, 2011 is less than one year,
the
TRDOCS01/76765.8
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weekly
average yield on actually traded United States Treasury securities adjusted
to a
constant maturity of one year will be used.
“Trust
Officer” means:
(1) any
officer within the corporate trust department of the Trustee, including any
vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such Person’s knowledge of and familiarity with the particular
subject, and
(2) who
shall
have direct responsibility for the administration of this
Indenture.
“Trustee”
means the party named as such in this Indenture until a successor replaces
it
and, thereafter, means the successor.
“Uniform
Commercial Code” means the New York Uniform Commercial Code as in effect from
time to time.
“Unrestricted
Subsidiary” means:
(1) any
Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of such Person in the
manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The
Board
of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company) to
be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Equity Interests or Indebtedness of, or owns or holds any Lien on
any
property of, the Company or any other Subsidiary of the Company that is not
a
Subsidiary of the Subsidiary to be so designated; provided,
however,
that
the Subsidiary to be so designated and its Subsidiaries do not at the time
of
designation have and do not thereafter Incur any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries; provided,
further,
however,
that
either:
(a) the
Subsidiary to be so designated has total consolidated assets of $1,000 or less;
or
(b) if
such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.04.
The
Board
of Directors of the Company may designate any Unrestricted Subsidiary to be
a
Restricted Subsidiary; provided,
however,
that
immediately after giving effect to such designation:
TRDOCS01/76765.8
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(x) (1)
the
Company could Incur $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Section 4.03(a) or (2) the Fixed Charge
Coverage Ratio for the Company and its Restricted Subsidiaries would be greater
than such ratio for the Company and its Restricted Subsidiaries immediately
prior to such designation, in each case on a pro forma basis taking into account
such designation, and
(y) no
Event
of Default shall have occurred and be continuing.
Any
such
designation by the Board of Directors of the Company shall be evidenced to
the
Trustee by promptly filing with the Trustee a copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers’ Certificate certifying that such designation complied with the
foregoing provisions.
“U.S.
Government Obligations” means securities that are:
(1) direct
obligations of the United States of America for the timely payment of which
its
full faith and credit is pledged, or
(2) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the timely payment of which
is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America,
which,
in
each case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
U.S. Government Obligations or a specific payment of principal of or interest
on
any such U.S. Government Obligations held by such custodian for the account
of
the holder of such depository receipt; provided
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
“Voting
Stock” of any Person as of any date means the Capital Stock of such Person that
is at the time entitled to vote in the election of the Board of Directors of
such Person.
“Weighted
Average Life to Maturity” means, when applied to any Indebtedness or
Disqualified Stock, as the case may be, at any date, the quotient obtained
by
dividing (1) the sum of the products of the number of years from the date of
determination to the date of each successive scheduled principal payment of
such
Indebtedness or redemption or similar payment with respect to such Disqualified
Stock multiplied by the amount of such payment, by (2) the sum of all such
payments.
“Wholly
Owned Restricted Subsidiary” is any Wholly Owned Subsidiary that is a Restricted
Subsidiary.
“Wholly
Owned Subsidiary” of any Person means a Subsidiary of such Person 100% of the
outstanding Capital Stock or other ownership interests of which (other
than
TRDOCS01/76765.8
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directors’
qualifying shares or shares required to be held by Foreign Subsidiaries) shall
at the time be owned by such Person or by one or more Wholly Owned Subsidiaries
of such Person.
SECTION
1.02. Other
Definitions
.
|
Term
|
Defined
in
Section
|
|
“Additional
Interest”
|
Appendix
A
|
|
“Affiliate
Transaction”
|
4.07
|
|
“Appendix”
|
Preamble
|
|
“Asset
Sale Offer”
|
4.06(b)
|
|
“Bankruptcy
Law”
|
6.01
|
|
“Blockage
Notice”
|
10.03
|
|
“covenant
defeasance option”
|
8.01(c)
|
|
“Custodian”
|
6.01
|
|
“Definitive
Security”
|
Appendix
A
|
|
“Depository”
|
Appendix
A
|
|
“Euroclear”
|
Appendix
A
|
|
“Event
of Default”
|
6.01
|
|
“Excess
Proceeds”
|
4.06(b)
|
|
“Exchange
Securities”
|
Preamble
|
|
“Global
Securities Legend”
|
Appendix
A
|
|
“Guarantee
Blockage Notice”
|
12.03
|
|
“Guarantee
Payment Blockage Period”
|
12.03
|
|
“Guaranteed
Obligations”
|
11.01(a)
|
|
“IAI”
|
Appendix
A
|
|
“incorporated
provision”
|
13.01
|
|
“Initial
Purchasers”
|
Appendix
A
|
|
“Initial
Securities”
|
Preamble
|
|
“legal
defeasance option”
|
8.01
|
|
“Notice
of Default”
|
6.01(j)
|
|
“Offer
Period”
|
4.06(d)
|
|
“Original
Securities”
|
Preamble
|
|
“pay
its Guarantee”
|
12.03
|
|
“pay
the Securities”
|
10.03
|
|
“Paying
Agent”
|
2.04
|
|
“Payment
Blockage Period”
|
10.03
|
|
“protected
purchaser”
|
2.08
|
|
“Purchase
Agreement”
|
Appendix
A
|
|
“QIB”
|
Appendix
A
|
|
“Refinancing
Indebtedness”
|
4.03(b)
|
|
“Refunding
Capital Stock”
|
4.04(b)
|
|
“Registered
Exchange Offer”
|
Appendix
A
|
|
“Registration
Agreement”
|
Appendix
A
|
|
“Registrar”
|
2.04
|
|
“Regulation
S”
|
Appendix
A
|
|
“Regulation
S Permanent Global Security”
|
Appendix
A
|
|
“Regulation
S Securities”
|
Appendix
A
|
|
“Regulation
S Temporary Global Security”
|
Appendix
A
|
|
“Restricted
Payment”
|
4.04(a)
|
|
“Restricted
Period”
|
Appendix
A
|
|
“Restricted
Securities Legend”
|
Appendix
A
|
|
“Retired
Capital Stock”
|
4.04(b)
|
|
“Rule
501”
|
Appendix
A
|
|
“Rule
144A”
|
Appendix
A
|
|
“Rule
144A Securities”
|
Appendix
A
|
|
“Securities
Custodian”
|
Appendix
A
|
|
“Shelf
Registration Statement”
|
Appendix
A
|
|
“Successor
Company”
|
5.01(a)
|
|
“Successor
Guarantor”
|
5.01(b)
|
|
“Transfer”
|
5.01(b)
|
|
“Transfer
Restricted Securities”
|
Appendix
A
|
|
“Unrestricted
Definitive Security
|
Appendix
A
|
SECTION
1.03. Incorporation
by Reference of Trust Indenture Act
.
This
Indenture incorporates by reference certain provisions of the TIA. The following
TIA terms have the following meanings:
“Commission”
means the SEC.
“indenture
securities” means the Securities and the Guarantees.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company, the Guarantors and any other
obligor on the Securities.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned
to them by such definitions.
SECTION
1.04. Rules
of
Construction
.
Unless
the context otherwise requires:
(a) a
term
has the meaning assigned to it;
TRDOCS01/76765.8
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(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or”
is
not exclusive;
(d) “including”
means including without limitation;
(e) words
in
the singular include the plural and words in the plural include the
singular;
(f) unsecured
Indebtedness shall not be deemed to be subordinate or junior to Secured
Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) the
principal amount of any non-interest bearing or other discount security at
any
date shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with
GAAP;
(h) the
principal amount of any Preferred Stock shall be (i) the maximum liquidation
value of such Preferred Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred Stock, whichever
is
greater;
(i) unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP;
(j) “$”
and
“U.S. Dollars” each refer to United States dollars, or such other money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; and
(k) whenever
in this Indenture or the Securities there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to any
Securities, such mention shall be deemed to include mention of the payment
of
Additional Interest, to the extent that, in such context, Additional Interest
are, were or would be payable in respect thereof.
ARTICLE
2
THE
SECURITIES
SECTION
2.01. Amount
of
Securities
.
The
aggregate principal amount of Original Securities which may be authenticated
and
delivered under this Indenture on the Issue Date is $265,000,000. All Securities
shall be substantially identical except as to denomination.
The
Company may from time to time after the Issue Date issue Additional Securities
under this Indenture in an unlimited principal amount, so long as (i) the
Incurrence of the Indebtedness represented by such Additional Securities is
at
such time permitted by Section 4.03 and (ii) such Additional Securities are
issued in compliance with the other applicable
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provisions
of this Indenture. With respect to any Additional Securities issued after the
Issue Date (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant
to
Section 2.07, 2.08, 2.09, 2.10, 3.06, 4.06(g), 4.08(c) or the Appendix), there
shall be (a) established in or pursuant to a resolution of the Board of
Directors and (b) (i) set forth or determined in the manner provided in an
Officers’ Certificate or (ii) established in one or more indentures supplemental
hereto, prior to the issuance of such Additional Securities:
(1) the
aggregate principal amount of such Additional Securities which may be
authenticated and delivered under this Indenture,
(2) the
issue
price and issuance date of such Additional Securities, including the date from
which interest on such Additional Securities shall accrue;
(3) if
applicable, that such Additional Securities shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the
respective depositaries for such Global Securities, the form of any legend
or
legends which shall be borne by such Global Securities in addition to or in
lieu
of those set forth in Exhibit A hereto and any circumstances in addition to
or
in lieu of those set forth in Section 2.2 of the Appendix in which any such
Global Security may be exchanged in whole or in part for Additional Securities
registered, or any transfer of such Global Security in whole or in part may
be
registered, in the name or names of Persons other than the depositary for such
Global Security or a nominee thereof; and
(4) if
applicable, that such Additional Securities that are not Transfer Restricted
Securities shall not be issued in the form of Initial Securities as set forth
in
Exhibit A, but shall be issued in the form of Exchange Securities as set forth
in Exhibit B.
If
any of
the terms of any Additional Securities are established by action taken pursuant
to a resolution of the Board of Directors, a copy of an appropriate record
of
such action shall be certified by the Secretary or any Assistant Secretary
of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate or the indenture supplemental hereto setting forth the
terms of the Additional Securities.
The
Securities, including any Additional Securities, shall be treated as a single
class for all purposes under this Indenture, including, without limitation,
waivers, amendments, redemptions and offers to purchase.
SECTION
2.02. Form
and
Dating
.
Provisions relating to the Initial Securities and the Exchange Securities are
set forth in the Appendix, which is hereby incorporated in and expressly made
a
part of this Indenture. The (i) Initial Securities and the Trustee’s certificate
of authentication and (ii) any Additional Securities (if issued as Transfer
Restricted Securities) and the Trustee’s certificate of authentication shall
each be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The (i) Exchange
Securities and the Trustee’s certificate of authentication and (ii) any
Additional Securities issued other than as Transfer Restricted Securities and
the Trustee’s certificate of authentication shall each be substantially in the
form of Exhibit B hereto, which is hereby
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incorporated
in and expressly made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company or any Guarantor is subject, if any, or usage
(provided
that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its authentication. The Securities
shall be issuable only in registered form without interest coupons and only
in
denominations of $1,000 and any integral multiples thereof.
SECTION
2.03. Execution
and Authentication
.
The
Trustee shall authenticate and make available for delivery upon a written order
of the Company signed by one Officer (a) Original Securities for original issue
on the date hereof in an aggregate principal amount of $265,000,000, (b) subject
to the terms of this Indenture, Additional Securities in an aggregate principal
amount to be determined at the time of issuance and specified therein and (c)
the Exchange Securities for issue in a Registered Exchange Offer pursuant to
the
Registration Agreement for a like principal amount of Initial Securities
exchanged pursuant thereto or otherwise pursuant to an effective registration
statement under the Securities Act. Such order shall specify the amount of
the
Securities to be authenticated, the date on which the original issue of
Securities is to be authenticated and whether the Securities are to be Initial
Securities or Exchange Securities. Notwithstanding anything to the contrary
in
the Indenture or the Appendix, any issuance of Additional Securities after
the
Issue Date shall be in a principal amount of at least $1,000.
One
Officer shall sign the Securities for the Company by manual or facsimile
signature.
If
an
Officer whose signature is on a Security no longer holds that office at the
time
the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A
Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The signature
shall be conclusive evidence that the Security has been authenticated under
this
Indenture.
The
Trustee may appoint one or more authenticating agents reasonably acceptable
to
the Company to authenticate the Securities. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall
be
furnished to the Company. Unless limited by the terms of such appointment,
an
authenticating agent may authenticate Securities whenever the Trustee may do
so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
any
Registrar, Paying Agent or agent for service of notices and
demands.
SECTION
2.04. Registrar
and Paying Agent
.
(1)
The
Company shall maintain (i) an office or agency where Securities may be presented
for registration of transfer or for exchange (the “Registrar”) and (ii) an
office or agency where Securities may be presented for payment (the “Paying
Agent”). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one
or
more additional paying agents. The term “Registrar” includes any co-registrars.
The term “Paying Agent” includes the Paying Agent and any additional paying
agents. The Company initially
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appoints
the Trustee as Registrar, Paying Agent and the Securities Custodian with respect
to the Global Securities.
(b) The
Company may enter into an appropriate agency agreement with any Registrar or
Paying Agent not a party to this Indenture, which shall incorporate the terms
of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company or any of its
domestically organized Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
(c) The
Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided,
however,
that no
such removal shall become effective until (i) if applicable, acceptance of
an
appointment by a successor as evidenced by an appropriate agreement entered
into
by the Company and such successor Registrar or Paying Agent, as the case may
be,
and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above. The Registrar or Paying Agent
may
resign at any time upon written notice to the Company and the Trustee;
provided,
however,
that
the Trustee may resign as Paying Agent or Registrar only if the Trustee also
resigns as Trustee in accordance with Section 7.08.
SECTION
2.05. Paying
Agent to Hold Money in Trust
.
Prior
to each due date of the principal of and interest on any Security, the Company
shall deposit with each Paying Agent (or if the Company or a Wholly Owned
Subsidiary is acting as Paying Agent, segregate and hold in trust for the
benefit of the Persons entitled thereto) a sum sufficient to pay such principal
and interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that a Paying Agent shall hold
in
trust for the benefit of Holders or the Trustee all money held by a Paying
Agent
for the payment of principal of and interest on the Securities, and shall notify
the Trustee of any default by the Company in making any such payment. If the
Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it in trust for
the benefit of the Persons entitled thereto. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and to account for
any
funds disbursed by such Paying Agent. Upon complying with this Section, a Paying
Agent shall have no further liability for the money delivered to the
Trustee.
SECTION
2.06. Holder
Lists
.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders. If
the
Trustee is not the Registrar, the Company shall furnish, or cause the Registrar
to furnish, to the Trustee, in writing at least five Business Days before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders.
SECTION
2.07. Transfer
and Exchange
.
The
Securities shall be issued in registered form and shall be transferable only
upon the surrender of a Security for registration of transfer and in compliance
with the Appendix. When a Security is presented to the Registrar
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with
a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements therefor are met. When Securities are presented
to
the Registrar with a request to exchange them for an equal principal amount
of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar’s request. The Company may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section. The Company
shall not be required to make, and the Registrar need not register, transfers
or
exchanges of Securities selected for redemption (except, in the case of
Securities to be redeemed in part, the portion thereof not to be redeemed)
or of
any Securities for a period of 15 days before a selection of Securities to
be
redeemed.
Prior
to
the due presentation for registration of transfer of any Security, the Company,
the Guarantors, the Trustee, the Paying Agent and the Registrar may deem and
treat the Person in whose name a Security is registered as the absolute owner
of
such Security for the purpose of receiving payment of principal of and interest,
if any, on such Security and for all other purposes whatsoever, whether or
not
such Security is overdue, and none of the Company, any Guarantor, the Trustee,
the Paying Agent or the Registrar shall be affected by notice to the
contrary.
Any
Holder of a beneficial interest in a Global Security shall, by acceptance of
such beneficial interest, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained
by
(a) the Holder of such Global Security (or its agent) or (b) any Holder of
a
beneficial interest in such Global Security, and that ownership of a beneficial
interest in such Global Security shall be required to be reflected in a book
entry.
All
Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION
2.08. Replacement
Securities
.
If a
mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code
are
met, such that the Holder (a) satisfies the Company or the Trustee within a
reasonable time after such Holder has notice of such loss, destruction or
wrongful taking and the Registrar does not register a transfer prior to
receiving such notification, (b) makes such request to the Company or the
Trustee prior to the Security being acquired by a protected purchaser as defined
in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and
(c) satisfies any other reasonable requirements of the Trustee. If required
by
the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Trustee to protect the Company, the Trustee,
a
Paying Agent and the Registrar from any loss that any of them may suffer if
a
Security is replaced. The Company and the Trustee may charge the Holder for
their expenses in replacing a Security (including without limitation, attorneys’
fees and disbursements in replacing such Security). In the event any such
mutilated, lost, destroyed or wrongfully taken Security has
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become
or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof.
Every
replacement Security is an additional obligation of the Company.
The
provisions of this Section 2.08 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, lost, destroyed or wrongfully taken Securities.
SECTION
2.09. Outstanding
Securities
.
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. Subject to Section
13.06, a Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
If
a
Security is replaced pursuant to Section 2.08 (other than a mutilated Security
surrendered for replacement), it ceases to be outstanding unless the Trustee
and
the Company receive proof satisfactory to them that the replaced Security is
held by a protected purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.08.
If
a
Paying Agent segregates and holds in trust, in accordance with this Indenture,
on a redemption date or maturity date money sufficient to pay all principal
and
interest payable on that date with respect to the Securities (or portions
thereof) to be redeemed or maturing, as the case may be, and no Paying Agent
is
prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Securities (or
portions thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION
2.10. Temporary
Securities
.
In the
event that Definitive Securities are to be issued under the terms of this
Indenture, until such Definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but
may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities and make them available for delivery in
exchange for temporary Securities upon surrender of such temporary Securities
at
the office or agency of the Company, without charge to the Holder. Until such
exchange, temporary Securities shall be entitled to the same rights, benefits
and privileges as Definitive Securities.
SECTION
2.11. Cancellation
.
The
Company at any time may deliver Securities to the Trustee for cancellation.
The
Registrar and each Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for registration
of transfer, exchange, payment or cancellation and shall dispose of canceled
Securities in accordance with its customary procedures. The Company may not
issue new Securities to replace Securities it has redeemed, paid or delivered
to
the Trustee for cancellation. The Trustee shall not authenticate Securities
in
place of canceled Securities other than pursuant to the terms of this
Indenture.
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SECTION
2.12. Defaulted
Interest
.
If the
Company defaults in a payment of interest on the Securities, the Company shall
pay the defaulted interest then borne by the Securities (plus interest on such
defaulted interest to the extent lawful) in any lawful manner. The Company
may
pay the defaulted interest to the Persons who are Holders on a subsequent
special record date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee
and
shall promptly mail or cause to be mailed to each affected Holder a notice
that
states the special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION
2.13. CUSIP
Numbers, ISINs, etc.
The
Company in issuing the Securities may use CUSIP numbers, ISINs and “Common Code”
numbers (if then generally in use) and, if so, the Trustee shall use CUSIP
numbers, ISINs and “Common Code” numbers in notices of redemption as a
convenience to Holders; provided,
however,
that
any such notice may state that no representation is made as to the correctness
of such numbers, either as printed on the Securities or as contained in any
notice of a redemption that reliance may be placed only on the other
identification numbers printed on the Securities and that any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
shall advise the Trustee of any change in the CUSIP numbers, ISINs and “Common
Code” numbers.
SECTION
2.14. Calculation
of Principal Amount of Securities
.
The
aggregate principal amount of the Securities, at any date of determination,
shall be the principal amount of the Securities at such date of determination.
With respect to any matter requiring consent, waiver, approval or other action
of the Holders of a specified percentage of the principal amount of all the
Securities, such percentage shall be calculated, on the relevant date of
determination, by dividing (a) the principal amount, as of such date of
determination, of Securities, the Holders of which have so consented, by (b)
the
aggregate principal amount, as of such date of determination, of the Securities
then outstanding, in each case, as determined in accordance with the preceding
sentence, Section 2.09 and Section 13.06 of this Indenture. Any such calculation
made pursuant to this Section 2.14 shall be made by the Company and delivered
to
the Trustee pursuant to an Officers’ Certificate.
ARTICLE
3
REDEMPTION
SECTION
3.01. Redemption
.
The
Securities may be redeemed, in whole, or from time to time in part, subject
to
the conditions and at the redemption prices set forth in Paragraph 5 of the
form
of Securities set forth in Exhibit A and Exhibit B hereto, which are hereby
incorporated by reference and made a part of this Indenture, together with
accrued and unpaid interest to the redemption date.
SECTION
3.02. Applicability
of Article
.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION
3.03. Notices
to Trustee
.
If the
Company elects to redeem Securities pursuant to the optional redemption
provisions of Paragraph 5 of the Security, it shall notify the
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Trustee
in writing of (i) the Section of this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of Securities
to be redeemed and (iv) the redemption price. The Company shall give notice
to
the Trustee provided for in this paragraph at least 45 days but not more than
60
days before a redemption date if the redemption is pursuant to Paragraph 5
of
the Security, unless a shorter period is acceptable to the Trustee. Such notice
shall be accompanied by an Officers’ Certificate and Opinion of Counsel from the
Company to the effect that such redemption will comply with the conditions
herein. If fewer than all the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall be not fewer than 15 days after the date of
notice to the Trustee. Any such notice may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect.
SECTION
3.04. Selection
of Securities to Be Redeemed
.
In the
case of any partial redemption, selection of the Securities for redemption
will
be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which such Securities are listed,
or if
such Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate (and in such manner as
complies with applicable legal requirements); provided
that no
Securities of $1,000 or less shall be redeemed in part. The Trustee shall make
the selection from outstanding Securities not previously called for redemption.
The Trustee may select for redemption portions of the principal of Securities
that have denominations larger than $1,000. Securities and portions of them
the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption
also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be
redeemed.
SECTION
3.05. Notice
of
Optional Redemption
.
(a) At
least 30 days but not more than 60 days before a redemption date pursuant to
Paragraph 5 of the Security, the Company shall mail or cause to be mailed by
first-class mail a notice of redemption to each Holder whose Securities are
to
be redeemed.
Any
such
notice shall identify the Securities to be redeemed and shall
state:
(i) the
redemption date;
(ii) the
redemption price and the amount of accrued interest to the redemption
date;
(iii) the
name
and address of the Paying Agent;
(iv) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price, plus accrued interest;
(v) if
fewer
than all the outstanding Securities are to be redeemed, the certificate numbers
and principal amounts of the particular Securities to be redeemed, the aggregate
principal amount of Securities to be redeemed and the aggregate principal amount
of Securities to be outstanding after such partial redemption;
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(vi) that,
unless the Company defaults in making such redemption payment or the Paying
Agent is prohibited from making such payment pursuant to the terms of this
Indenture, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date;
(vii) the
CUSIP
number, ISIN and/or “Common Code” number, if any, printed on the Securities
being redeemed; and
(viii) that
no
representation is made as to the correctness or accuracy of the CUSIP number
or
ISIN and/or “Common Code” number, if any, listed in such notice or printed on
the Securities.
(b) At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense. In such event, the Company shall
provide the Trustee with the information required by this Section.
SECTION
3.06. Effect
of
Notice of Redemption
.
Once
notice of redemption is mailed in accordance with Section 3.05, Securities
called for redemption become due and payable on the redemption date and at
the
redemption price stated in the notice, except as provided in the final sentence
of paragraph 5 of the Securities. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price stated in the notice, plus
accrued interest, to, but not including, the redemption date; provided,
however,
that if
the redemption date is after a regular record date and on or prior to the
interest payment date, the accrued interest shall be payable to the Holder
of
the redeemed Securities registered on the relevant record date. Failure to
give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION
3.07. Deposit
of Redemption Price
.
With
respect to any Securities, prior to 10:00 a.m., New York City time, on the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities or portions thereof to be redeemed on that date
other
than Securities or portions of Securities called for redemption that have been
delivered by the Company to the Trustee for cancellation. On and after the
redemption date, interest shall cease to accrue on Securities or portions
thereof called for redemption so long as the Company has deposited with the
Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest on, the Securities to be redeemed, unless the Paying Agent is
prohibited from making such payment pursuant to the terms of this
Indenture.
SECTION
3.08. Securities
Redeemed in Part
.
Upon
surrender of a Security that is redeemed in part, the Company shall execute
and
the Trustee shall authenticate for the Holder (at the Company’s expense) a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
TRDOCS01/76765.8
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Article
4
COVENANTS
SECTION
4.01. Payment
of Securities
.
The
Company shall promptly pay the principal of and interest on the Securities
on
the dates and in the manner provided in the Securities and in this Indenture.
An
installment of principal of or interest shall be considered paid on the date
due
if on such date the Trustee or the Paying Agent holds as of 12:00 p.m. Eastern
time money sufficient to pay all principal and interest then due and the Trustee
or the Paying Agent, as the case may be, is not prohibited from paying such
money to the Holders on that date pursuant to the terms of this
Indenture.
The
Company shall pay interest on overdue principal at the rate specified therefor
in the Securities, and it shall pay interest on overdue installments of interest
at the same rate borne by the Securities to the extent lawful.
SECTION
4.02. Reports
and Other Information
.
(a)
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act or otherwise report
on
an annual and quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the SEC, the Company
shall file with the SEC (and provide the Trustee and Holders with copies
thereof, without cost to each Holder, within 15 days after it files them with
the SEC),
(i) within
90
days after the end of each fiscal year (or such shorter period as may be
required by the SEC), annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be contained therein
(or
required in such successor or comparable form),
(ii) within
45
days after the end of each of the first three fiscal quarters of each fiscal
year (or such shorter period as may be required by the SEC), reports on Form
10-Q (or any successor or comparable form) containing the information required
to be contained therein (or required in such successor or comparable
form),
(iii) promptly
from time to time after the occurrence of an event required to be therein
reported (and in any event within the time period specified for filing current
reports on Form 8-K by the SEC), such other reports on Form 8-K (or any
successor or comparable form), and
(iv) any
other
information, documents and other reports which the Company would be required
to
file with the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act;
provided,
however,
that
the Company shall not be so obligated to file such reports with the SEC if
the
SEC does not permit such filing, in which event the Company shall make available
such information to prospective purchasers of Securities, in addition to
providing such information to the Trustee and the Holders, in each case within
15 days after the time the Company would be required to file such information
with the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act.
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(b) In
the
event that:
(i) the
rules
and regulations of the SEC permit the Company and any direct or indirect parent
of the Company to report at such parent entity’s level on a consolidated basis
and
(ii) such
parent entity of the Company is not engaged in any business in any material
respect other than incidental to its ownership, directly or indirectly, of
the
capital stock of the Company,
such
consolidated reporting at such parent entity’s level in a manner consistent with
that described in this Section 4.02 for the Company shall satisfy this Section
4.02.
(c) The
Company shall make such information available to prospective investors upon
request. In addition, the Company shall, for so long as any Securities remain
outstanding during any period when it is not subject to Section 13 or 15(d)
of
the Exchange Act, or otherwise permitted to furnish the SEC with certain
information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the
Holders of the Securities and to prospective investors, upon their request,
the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Notwithstanding
the foregoing, the Company will be deemed to have furnished such reports
referred to above to the Trustee and the Holders if the Company has filed such
reports with the SEC via the XXXXX filing system and such reports are publicly
available. In addition, such requirements shall be deemed satisfied prior to
the
commencement of the exchange offer contemplated by the Registration Agreement
relating to the Securities or the effectiveness of the shelf registration
statement by the filing with the SEC of the Exchange Offer Registration
Statement and/or shelf registration statement in accordance with the provisions
of such registration rights agreement, and any amendments thereto, with such
financial information that satisfies Regulation S-X of the Securities Act and
such registration statement and/or amendments thereto are filed at times that
otherwise satisfy the time requirements set forth in Section
4.02(a).
In
the
event that any direct or indirect parent of the Company is or becomes a
Guarantor of the Securities, the Company may satisfy its obligations under
this
Section 4.02 with respect to financial information relating to the Company
by
furnishing financial information relating to such direct or indirect parent;
provided
that the
same is accompanied by consolidating information that explains in reasonable
detail the differences between the information relating to such direct or
indirect parent and any of its Subsidiaries other than the Company and its
Subsidiaries, on the one hand, and the information relating to the Company,
the
Guarantors and the other Subsidiaries of the Company on a standalone basis,
on
the other hand.
SECTION
4.03. Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred
Stock
.
(2)
(i) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness)
or issue any shares of Disqualified Stock; and (ii) the Company shall not permit
any of its Restricted Subsidiaries (other than a Guarantor) to issue any shares
of Preferred
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Stock;
provided,
however,
that
the Company and any Restricted Subsidiary that is a Guarantor or a Foreign
Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock and any Restricted Subsidiary may issue shares
of
Preferred Stock, in each case if the Fixed Charge Coverage Ratio of the Company
for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which
such
additional Indebtedness is Incurred or such Disqualified Stock or Preferred
Stock is issued would have been at least 2.00 to 1.00 determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as
if
the additional Indebtedness had been Incurred, or the Disqualified Stock or
Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter
period.
(b) The
limitations set forth in Section 4.03(a) shall not apply to:
(i) the
Incurrence by the Company or its Restricted Subsidiaries of Indebtedness under
the Credit Agreement and the issuance and creation of letters of credit and
bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances
being deemed to have a principal amount equal to the face amount thereof) up
to
an aggregate principal amount of $750 million outstanding at any one
time;
(ii) the
Incurrence by the Company, the Floating Rate Guarantors and the Guarantors
of
Indebtedness represented by the Floating Rate Loan, the Floating Rate
Guarantees, the Original Securities (not including any Additional Securities)
and the Guarantees, as applicable (including the Exchange Securities and
guarantees thereof);
(iii) Indebtedness
existing on the Issue Date (other than Indebtedness described in clauses (i)
and
(ii) of this Section 4.03(b));
(iv) Indebtedness
(including Capitalized Lease Obligations) Incurred by the Company or any of
its
Restricted Subsidiaries to finance (whether prior to or within 270 days after)
the purchase, lease or improvement of property (real or personal) or equipment
(whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets (but no other material assets)) in an aggregate
principal amount which, when aggregated with the principal amount of all other
Indebtedness then outstanding that was Incurred pursuant to this clause (iv),
does not exceed the greater of $75.0 million and 4.0% of Total Assets at the
time of Incurrence;
(v) Indebtedness
Incurred by the Company or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business, including without limitation letters of credit
in
respect of workers’ compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance, or
other Indebtedness with respect to reimbursement type obligations regarding
workers’ compensation claims; provided,
however,
that
upon the drawing of such letters of credit, such obligations are reimbursed
within 30 days following such drawing;
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(vi) Indebtedness
arising from agreements of the Company or a Restricted Subsidiary providing
for
indemnification, adjustment of purchase price or similar obligations, in each
case, Incurred in connection with the Acquisition or any other acquisition
or
disposition of any business, assets or a Subsidiary of the Company in accordance
with the terms of this Indenture, other than guarantees of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets or
Subsidiary for the purpose of financing such acquisition;
(vii) Indebtedness
of the Company to a Restricted Subsidiary; provided
that any
such Indebtedness owed to a Restricted Subsidiary that is not a Guarantor is
subordinated in right of payment to the obligations of the Company under the
Securities; provided,
further,
that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness (except
to
the Company or another Restricted Subsidiary) shall be deemed, in each case,
to
be an Incurrence of such Indebtedness;
(viii) shares
of
Preferred Stock of a Restricted Subsidiary issued to the Company or another
Restricted Subsidiary; provided
that any
subsequent issuance or transfer of any Capital Stock or any other event which
results in any Restricted Subsidiary that holds such shares of Preferred Stock
of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of Preferred Stock (except to
the
Company or another Restricted Subsidiary) shall be deemed, in each case, to
be
an issuance of shares of Preferred Stock;
(ix) Indebtedness
of a Restricted Subsidiary to the Company or another Restricted Subsidiary;
provided
that if
a Guarantor incurs such Indebtedness to a Restricted Subsidiary that is not
a
Guarantor such Indebtedness is subordinated in right of payment to the Guarantee
of such Guarantor; provided,
further,
that
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any Restricted Subsidiary lending such Indebtedness ceasing
to
be a Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or another Restricted Subsidiary) shall
be
deemed, in each case, to be an Incurrence of such Indebtedness;
(x) Hedging
Obligations that are not incurred for speculative purposes: (1) for the
purpose of fixing or hedging interest rate risk with respect to any Indebtedness
that is permitted by the terms of this Indenture to be outstanding; (2) for
the
purpose of fixing or hedging currency exchange rate risk with respect to any
currency exchanges; or (3) for the purpose of fixing or hedging commodity price
risk with respect to any commodity purchases or sales;
(xi) obligations
in respect of performance, bid and surety bonds and completion guarantees
provided by the Company or any Restricted Subsidiary in the ordinary course
of
business;
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(xii) Indebtedness
or Disqualified Stock of the Company or any Restricted Subsidiary of the Company
not otherwise permitted hereunder in an aggregate principal amount, which when
aggregated with the principal amount or liquidation preference of all other
Indebtedness and Disqualified Stock then outstanding and Incurred pursuant
to
this clause (xii), does not exceed $100 million at any one time outstanding
(it
being understood that any Indebtedness Incurred under this clause (xii) shall
cease to be deemed Incurred or outstanding for purposes of this clause (xii)
but
shall be deemed Incurred for purposes of Section 4.03(a) from and after the
first date on which the Company, or the Restricted Subsidiary, as the case
may
be, could have Incurred such Indebtedness under Section 4.03(a) without reliance
upon this clause (xii));
(xiii) any
guarantee by the Company or a Guarantor of Indebtedness or other obligations
of
the Company or any of its Restricted Subsidiaries so long as the Incurrence
of
such Indebtedness Incurred by the Company or such Restricted Subsidiary is
permitted under the terms of this Indenture; provided
that if
such Indebtedness is by its express terms subordinated in right of payment
to
the Securities or the Guarantee of such Restricted Subsidiary, as applicable,
any such guarantee of such Guarantor with respect to such Indebtedness shall
be
subordinated in right of payment to such Guarantor’s Guarantee with respect to
the Securities substantially to the same extent as such Indebtedness is
subordinated to the Securities or the Guarantee of such Restricted Subsidiary,
as applicable;
(xiv) the
Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
or Disqualified Stock or Preferred Stock of a Restricted Subsidiary of the
Company which serves to refund, refinance or defease any Indebtedness Incurred
or Disqualified Stock or Preferred Stock issued as permitted under Section
4.03(a) and clauses (ii), (iii), (iv), (xv), (xix) and (xx) of this Section
4.03(b) or any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to
so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock,
including any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to
pay premiums and fees in connection therewith (subject to the following proviso,
“Refinancing
Indebtedness”)
prior
to its respective maturity; provided,
however,
that
such Refinancing Indebtedness:
(1) has
a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is
Incurred which is not less than the shorter of (x) the remaining Weighted
Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred
Stock being refunded or refinanced and (y) the Weighted Average Life to Maturity
that would result if all payments of principal on the Indebtedness, Disqualified
Stock and Preferred Stock being refunded or refinanced that were due on or
after
the date one year following the last maturity date of any Securities then
outstanding were instead due on such date one year following the last date
of
maturity of the Securities;
(2) has
a
Stated Maturity which is not earlier than the earlier of (x) the Stated Maturity
of the Indebtedness being refunded or refinanced or (y) one year following
the
last maturity date of the Securities;
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(3) to
the
extent such Refinancing Indebtedness refinances (a) Indebtedness junior to
the
Securities or the Guarantee of such Restricted Subsidiary, as applicable, such
Refinancing Indebtedness is junior to the Securities or the Guarantee of such
Restricted Subsidiary, as applicable, or (b) Disqualified Stock or Preferred
Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred
Stock;
(4) is
Incurred in an aggregate amount (or if issued with original issue discount,
an
aggregate issue price) that is equal to or less than the aggregate amount (or
if
issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium, fees and expenses
Incurred in connection with such refinancing;
(5) shall
not
include (x) Indebtedness of a Restricted Subsidiary of the Company that is
not a
Guarantor that refinances Indebtedness of the Company or a Restricted Subsidiary
that is a Guarantor, or (y) Indebtedness of the Company or a Restricted
Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary;
and
(6) in
the
case of any Refinancing Indebtedness Incurred to refinance Indebtedness
outstanding under clause (iv), (xix) or (xx) of this Section 4.03(b), shall
be
deemed to have been Incurred and to be outstanding under such clause (iv),
(xix)
or (xx) of this Section 4.03(b), as applicable, and not this clause (xiv) for
purposes of determining amounts outstanding under such clauses (iv), (xix)
and
(xx) of this Section 4.03(b);
provided,
further,
that
subclauses (1) and (2) of this clause (xiv) shall not apply to any refunding
or
refinancing of the Securities or any Senior Indebtedness.
(xv) Indebtedness,
Disqualified Stock or Preferred Stock of Persons that are acquired by the
Company or any of its Restricted Subsidiaries or merged into a Restricted
Subsidiary in accordance with the terms of this Indenture; provided,
however,
that
such Indebtedness, Disqualified Stock or Preferred Stock is not Incurred in
contemplation of such acquisition or merger or to provide all or a portion
of
the funds or credit support required to consummate such acquisition or merger;
provided,
further,
however,
that
after giving effect to such acquisition and the Incurrence of such Indebtedness
either:
(1) the
Company would be permitted to Incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first sentence
of Section 4.03(a); or
(2) the
Fixed
Charge Coverage Ratio would be greater than immediately prior to such
acquisition;
(xvi) Indebtedness
Incurred by a Receivables Subsidiary in a Qualified Receivables Financing that
is not recourse to the Company or any Restricted Subsidiary other than a
Receivables Subsidiary (except for Standard Securitization
Undertakings);
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(xvii) Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided
that
such Indebtedness is extinguished within two Business Days of its
Incurrence;
(xviii) Indebtedness
of the Company or any Restricted Subsidiary supported by a letter of credit
issued pursuant to the Credit Agreement, in a principal amount not in excess
of
the stated amount of such letter of credit;
(xix) Contribution
Indebtedness;
(xx) Indebtedness
of Restricted Subsidiaries that are not Guarantors Incurred for working capital
purposes, provided,
however,
that
the aggregate principal amount of Indebtedness Incurred under this clause (xx),
when aggregated with the principal amount of all other Indebtedness then
outstanding and Incurred pursuant to this clause (xx), does not exceed the
greater of $15 million and 10% of the consolidated assets of the Restricted
Subsidiaries that are not Guarantors; and
(xxi) Indebtedness
of the Company or any Restricted Subsidiary consisting of (x) the financing
of
insurance premiums or (y) take-or-pay obligations contained in supply
arrangements, in each case, in the ordinary course of business.
(c) For
purposes of determining compliance with this Section 4.03, in the event that
an
item of Indebtedness, Disqualified Stock or Preferred Stock meets the criteria
of more than one of the categories of permitted Indebtedness described in
clauses (i) through (xxi) above or is entitled to be Incurred pursuant to
Section 4.03(a), the Company shall, in its sole discretion, classify or
reclassify, or later divide, classify or reclassify, such item of Indebtedness
in any manner that complies with this Section 4.03; provided
that all
Indebtedness under the Credit Agreement outstanding on the Issue Date shall
be
deemed to have been Incurred pursuant to clause (i) of Section 4.03(b) and
the
Company shall not be permitted to reclassify all or any portion of such
Indebtedness under the Credit Agreement outstanding on the Issue Date. Accrual
of interest, the accretion of accreted value, the payment of interest in the
form of additional Indebtedness with the same terms, the payment of dividends
on
Preferred Stock in the form of additional shares of Preferred Stock of the
same
class, accretion of original issue discount or liquidation preference and
increases in the amount of Indebtedness outstanding solely as a result of
fluctuations in the exchange rate of currencies shall not be deemed to be an
Incurrence of Indebtedness for purposes of this Section 4.03. Guarantees of,
or
obligations in respect of letters of credit relating to, Indebtedness which
is
otherwise included in the determination of a particular amount of Indebtedness
shall not be included in the determination of such amount of Indebtedness;
provided
that the
Incurrence of the Indebtedness represented by such guarantee or letter of
credit, as the case may be, was in compliance with this Section
4.03.
(d) For
purposes of determining compliance with any U.S. dollar-denominated restriction
on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount
of Indebtedness denominated in a foreign currency shall be calculated based
on
the relevant currency exchange rate in effect on the date such Indebtedness
was
Incurred, in the case of term debt, or first committed or first Incurred
(whichever yields the lower U.S. dollar
TRDOCS01/76765.8
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equivalent),
in the case of revolving credit debt; provided
that if
such Indebtedness is Incurred to refinance other Indebtedness denominated in
a
foreign currency, and such refinancing would cause the applicable U.S.
dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so
long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced.
SECTION
4.04. Limitation
on Restricted Payments
.
(3)
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(i) declare
or pay any dividend or make any distribution on account of the Company’s or any
of its Restricted Subsidiaries’ Equity Interests, including any payment made in
connection with any merger or consolidation involving the Company (other than
(A) dividends or distributions by the Company payable solely in Equity Interests
(other than Disqualified Stock) of the Company; or (B) dividends or
distributions by a Restricted Subsidiary so long as, in the case of any dividend
or distribution payable on or in respect of any class or series of securities
issued by a Restricted Subsidiary other than a Wholly Owned Restricted
Subsidiary, the Company or a Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities);
(ii) purchase
or otherwise acquire or retire for value any Equity Interests of the Company
or
any direct or indirect parent of the Company;
(iii) make
any
principal payment on, or redeem, repurchase, defease or otherwise acquire or
retire for value, in each case prior to any scheduled repayment or scheduled
maturity, any Subordinated Indebtedness (other than the payment, redemption,
repurchase, defeasance, acquisition or retirement of (A) Subordinated
Indebtedness in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date
of
such payment, redemption, repurchase, defeasance, acquisition or retirement
and
(B) Indebtedness permitted under clauses (vii) and (ix) of Section 4.03(b));
or
(iv) make
any
Restricted Investment
(all
such
payments and other actions set forth in clauses (i) through (iv) above being
collectively referred to as “Restricted
Payments”),
unless, at the time of such Restricted Payment:
(1) no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof;
(2) immediately
after giving effect to such transaction on a pro forma basis, the Company could
Incur $1.00 of additional Indebtedness under Section 4.03(a); and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the Issue
Date (including Restricted Payments permitted by clauses (i), (iv) (only to
the
extent of
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one-half
of the amounts paid pursuant to such clause), (vi), (viii) and (xiii) (only
to
the extent of one-half of the amounts paid pursuant to such clause) of Section
4.04(b), but excluding all other Restricted Payments permitted by Section
4.04(b)), is less than the amount equal to the Cumulative Credit.
(b) The
provisions of Section 4.04(a) shall not prohibit:
(i) the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at the date of declaration such payment would have
complied with the provisions of this Indenture;
(ii) (A)
the
repurchase, retirement or other acquisition of any Equity Interests (“Retired
Capital Stock”) of the Company or any direct or indirect parent of the Company
or Subordinated Indebtedness of the Company or any Guarantor in exchange for,
or
out of the proceeds of the substantially concurrent sale of, Equity Interests
of
the Company or contributions to the equity capital of the Company (other than
any Disqualified Stock or any Equity Interests sold to a Subsidiary of the
Company or to an employee stock ownership plan or any trust established by
the
Company or any of its Subsidiaries) (collectively, including any such
contributions, “Refunding Capital Stock”); and (B) the declaration and payment
of accrued dividends on the Retired Capital Stock out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company or
to
an employee stock ownership plan or any trust established by the Company or
any
of its Subsidiaries) of Refunding Capital Stock;
(iii) the
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Company or any Guarantor made by exchange for, or out of
the
proceeds of the substantially concurrent sale of, new Indebtedness of the
Company or a Guarantor which is Incurred in accordance with Section 4.03 so
long
as
(A) the
principal amount of such new Indebtedness does not exceed the principal amount
of the Subordinated Indebtedness being so redeemed, repurchased, acquired or
retired for value (plus the amount of any premium required to be paid under
the
terms of the instrument governing the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired plus any fees incurred in connection
therewith),
(B) such
Indebtedness is subordinated to the Securities at least to the same extent
as
such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased,
acquired or retired for value,
(C) such
Indebtedness has a final scheduled maturity date equal to or later than the
earlier of (x) the final scheduled maturity date of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired or (y) one
year
following the Stated Maturity of the Securities, and
(D) such
Indebtedness has a Weighted Average Life to Maturity at the time Incurred which
is not less than the shorter of (x) the remaining Weighted Average Life to
Maturity of the Subordinated Indebtedness being so redeemed,
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repurchased,
acquired or retired and (y) the Weighted Average Life to Maturity that would
result if all payments of principal on the Subordinated Indebtedness being
redeemed, repurchased, acquired or retired that were due on or after the date
one year following the last maturity date of any Securities then outstanding
were instead due on such date one year following the last date of maturity
of
the Securities;
(iv) the
repurchase, retirement or other acquisition (or dividends to any direct or
indirect parent of the Company to finance any such repurchase, retirement or
other acquisition) for value of Equity Interests of the Company or any direct
or
indirect parent of the Company held by any future, present or former employee,
director or consultant of the Company or any direct or indirect parent of the
Company or any Subsidiary of the Company pursuant to any management equity
plan
or stock option plan or any other management or employee benefit plan or other
agreement or arrangement; provided,
however,
that
the aggregate amounts paid under this clause (iv) do not exceed $12.5 million
in
any calendar year (with unused amounts in any calendar year being permitted
to
be carried over for the two succeeding calendar years subject to a maximum
payment (without giving effect to the following proviso) of $20 million in
any
calendar year); provided,
further,
however,
that
such amount in any calendar year may be increased by an amount not to
exceed:
(A) the
cash
proceeds received by the Company or any of its Restricted Subsidiaries from
the
sale of Equity Interests (other than Disqualified Stock) of the Company or
any
direct or indirect parent of the Company (to the extent contributed to the
Company) to members of management, directors or consultants of the Company
and
its Restricted Subsidiaries or any direct or indirect parent of the Company
that
occurs after the Issue Date (provided
that the
amount of such cash proceeds utilized for any such repurchase, retirement,
other
acquisition or dividend shall not increase the amount available for Restricted
Payments under Section 4.04(a)(3)); plus
(B) the
cash
proceeds of key man life insurance policies received by the Company or any
direct or indirect parent of the Company (to the extent contributed to the
Company) or the Company’s Restricted Subsidiaries after the Issue
Date;
provided
that the
Company may elect to apply all or any portion of the aggregate increase
contemplated by clauses (A) and (B) above in any calendar year;
(v) the
declaration and payment of dividends or distributions to holders of any class
or
series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries issued or incurred in accordance with Section 4.03;
(vi) the
declaration and payment of dividends or distributions (a) to holders of any
class or series of Designated Preferred Stock (other than Disqualified Stock)
issued after the Issue Date and (b) to any direct or indirect parent of the
Company, the proceeds of which will be used to fund the payment of dividends
to
holders of any class or series of
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Designated
Preferred Stock (other than Disqualified Stock) of any direct or indirect parent
of the Company issued after the Issue Date; provided,
however,
that,
(A) for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date of issuance
of
such Designated Preferred Stock, after giving effect to such issuance (and
the
payment of dividends or distributions) on a pro forma basis, the Company would
have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00 and (B) the
aggregate amount of dividends declared and paid pursuant to this clause (vi)
does not exceed the net cash proceeds actually received by the Company from
any
such sale of Designated Preferred Stock (other than Disqualified Stock) issued
after the Issue Date;
(vii) Investments
in Unrestricted Subsidiaries having an aggregate Fair Market Value, taken
together with all other Investments made pursuant to this clause (vii) that
are
at that time outstanding, not to exceed $25 million at the time of such
Investment (with the Fair Market Value of each Investment being measured at
the
time made and without giving effect to subsequent changes in
value);
(viii) the
payment of dividends on the Company’s common stock (or the payment of dividends
to any direct or indirect parent of the Company, as the case may be, to fund
the
payment by any direct or indirect parent of the Company, as the case may be,
of
dividends on such entity’s common stock) of up to 6% per annum of the net
proceeds received by the Company from any public offering of common stock of
the
Company or any direct or indirect parent of the Company;
(ix) Investments
that are made with Excluded Contributions;
(x) other
Restricted Payments in an aggregate amount not to exceed $50
million;
(xi) the
distribution, as a dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Company or a Restricted Subsidiary of the Company
by,
Unrestricted Subsidiaries;
(xii) the
payment of dividends or other distributions to any direct or indirect parent
of
the Company in amounts required for such parent to pay federal, state or local
income taxes (as the case may be) imposed directly on such parent to the extent
such income taxes are attributable to the income of the Company and its
Restricted Subsidiaries (including, without limitation, by virtue of such parent
being the common parent of a consolidated or combined tax group of which the
Company and/or its Restricted Subsidiaries are members);
(xiii) the
payment of dividends, other distributions or other amounts or the making of
loans or advances by the Company, if applicable:
(A) in
amounts equal to the amounts required for any direct or indirect parent of
the
Company, if applicable, to pay fees and expenses (including franchise or similar
taxes) required to maintain its corporate existence, customary salary, bonus
and
other benefits payable to, and indemnities provided on behalf
TRDOCS01/76765.8
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of,
officers and employees of any direct or indirect parent of the Company, if
applicable, and general corporate overhead expenses of any direct or indirect
parent of the Company, if applicable, in each case to the extent such fees
and
expenses are attributable to the ownership or operation of the Company, if
applicable, and its Subsidiaries; and
(B) in
amounts equal to amounts required for any direct or indirect parent of the
Company, if applicable, to pay interest and/or principal on Indebtedness the
proceeds of which have been contributed to the Company or any of its Restricted
Subsidiaries and that has been guaranteed by, or is otherwise considered
Indebtedness of, the Company Incurred in accordance with Section
4.03;
(xiv) cash
dividends or other distributions on the Company’s Capital Stock used to, or the
making of loans to any direct or indirect parent of the Company to, fund the
Transactions and the payment of fees and expenses incurred in connection with
the Transactions or owed by the Company or any direct or indirect parent of
the
Company, as the case may be, or Restricted Subsidiaries of the Company to
Affiliates, in each case to the extent permitted by Section 4.07;
(xv) repurchases
of Equity Interests deemed to occur upon exercise of stock options if such
Equity Interests represent a portion of the exercise price of such
options;
(xvi) purchases
of receivables pursuant to a Receivables Repurchase Obligation in connection
with a Qualified Receivables Financing and the payment or distribution of
Receivables Fees;
(xvii) the
repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness pursuant to the provisions similar to those described
under Sections 4.06 and 4.08; provided
that all
Securities tendered by Holders in connection with a Change of Control Offer
or
Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired
for
value; and
(xviii) any
payments made, including any such payments made to any direct or indirect parent
of the Company to enable it to make payments, in connection with the
consummation of the Transactions or as contemplated by the Acquisition Documents
(other than payments to any Permitted Holder or any Affiliate
thereof);
provided,
however,
that at
the time of, and after giving effect to, any Restricted Payment permitted under
clauses (vi), (vii), (x) and (xi) of this Section 4.04(b), no Default or Event
of Default shall have occurred and be continuing or would occur as a consequence
thereof.
(c) As
of the
Issue Date, all of the Company’s Subsidiaries shall be Restricted Subsidiaries.
The Company shall not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to the definition of “Unrestricted Subsidiary.” For
purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary,
all outstanding Investments by the Company and its Restricted Subsidiaries
(except to the extent repaid) in the Subsidiary so designated shall be deemed
to
be Restricted Payments in an amount determined as set forth in the
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last
sentence of the definition of “Investments.” Such designation shall only be
permitted if a Restricted Payment in such amount would be permitted at such
time
and if such Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
SECTION
4.05. Dividend
and Other Payment Restrictions Affecting Subsidiaries
.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability
of
any Restricted Subsidiary to:
(a) (i)
pay
dividends or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock; or (2) with respect to any
other interest or participation in, or measured by, its profits; or (ii) pay
any
Indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(b) make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
(c) sell,
lease or transfer any of its properties or assets to the Company or any of
its
Restricted Subsidiaries;
except
in
each case for such encumbrances or restrictions existing under or by reason
of:
(1) contractual
encumbrances or restrictions in effect on the Issue Date, including pursuant
to
the Credit Agreement and the other Senior Credit Documents;
(2) the
Floating Rate Loan, this Indenture and the Securities (and any Exchange
Securities and guarantees thereof);
(3) applicable
law or any applicable rule, regulation or order;
(4) any
agreement or other instrument relating to Indebtedness of a Person acquired
by
the Company or any Restricted Subsidiary which was in existence at the time
of
such acquisition (but not created in contemplation thereof or to provide all
or
any portion of the funds or credit support utilized to consummate such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(5) any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of assets of such Restricted
Subsidiary pending the closing of such sale or disposition;
(6) Secured
Indebtedness otherwise permitted to be Incurred pursuant to Sections 4.03 and
4.12 that limit the right of the debtor to dispose of the assets securing such
Indebtedness;
(7) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
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(8) customary
provisions in joint venture agreements and other similar agreements entered
into
in the ordinary course of business;
(9) purchase
money obligations for property acquired in the ordinary course of business
that
impose restrictions of the nature discussed in clause (c) above on the property
so acquired;
(10) customary
provisions contained in leases, licenses and other similar agreements entered
into in the ordinary course of business that impose restrictions of the type
described in clause (c) above on the property subject to such
lease;
(11) any
encumbrance or restriction of a Receivables Subsidiary effected in connection
with a Qualified Receivables Financing; provided,
however,
that
such restrictions apply only to such Receivables Subsidiary;
(12) other
Indebtedness of any Restricted Subsidiary of the Company (i) that is a Guarantor
that is Incurred subsequent to the Issue Date pursuant to Section 4.03 or (ii)
that is Incurred by a Foreign Subsidiary of the Company subsequent to the Issue
Date pursuant to clause (iv), (xii) or (xx) of Section 4.03(b);
(13) any
Restricted Investment not prohibited by Section 4.04 and any Permitted
Investment; or
(14) any
encumbrances or restrictions of the type referred to in clauses (a), (b) and
(c)
above imposed by any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (1) through (13)
above; provided
that
such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are, in the good faith judgment of
the
Company, no more restrictive with respect to such dividend and other payment
restrictions than those contained in the dividend or other payment restrictions
prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
For
purposes of determining compliance with this Section 4.05, (i) the priority
of
any Preferred Stock in receiving dividends or liquidating distributions prior
to
dividends or liquidating distributions being paid on common stock shall not
be
deemed a restriction on the ability to make distributions on Capital Stock
and
(ii) the subordination of loans or advances made to the Company or a Restricted
Subsidiary of the Company to other Indebtedness Incurred by the Company or
any
such Restricted Subsidiary shall not be deemed a restriction on the ability
to
make loans or advances.
SECTION
4.06. Asset
Sales
.
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
cause or make an Asset Sale, unless (x) the Company or any of its Restricted
Subsidiaries, as the case may be, receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value (as determined in good faith
by the Company) of the assets sold or otherwise disposed of, and (y) at least
75% of the consideration therefor received
TRDOCS01/76765.8
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by
the
Company or such Restricted Subsidiary, as the case may be, is in the form of
Cash Equivalents; provided
that the
amount of:
(i) any
liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet or in the notes thereto) of the Company or any Restricted
Subsidiary of the Company (other than liabilities that are by their terms
subordinated to the Securities or any Guarantee) that are assumed by the
transferee of any such assets,
(ii) any
notes
or other obligations or other securities or assets received by the Company
or
such Restricted Subsidiary of the Company from such transferee that are
converted by the Company or such Restricted Subsidiary of the Company into
cash
within 180 days of the receipt thereof (to the extent of the cash received),
and
(iii) any
Designated Non-cash Consideration received by the Company or any of its
Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market
Value, taken together with all other Designated Non-cash Consideration received
pursuant to this clause (iii) that is at that time outstanding, not to exceed
the greater of 3.0% of Total Assets and $35 million at the time of the receipt
of such Designated Non-cash Consideration (with the Fair Market Value of each
item of Designated Non-cash Consideration being measured at the time received
and without giving effect to subsequent changes in value)
shall
be
deemed to be Cash Equivalents for the purposes of this Section
4.06(a).
(b) Within
365 days after the Company’s or any Restricted Subsidiary of the Company’s
receipt of the Net Proceeds of any Asset Sale, the Company or such Restricted
Subsidiary of the Company may apply the Net Proceeds from such Asset Sale,
at
its option:
(i) to
permanently reduce Obligations under the Credit Agreement (and, in the case
of
revolving Obligations, to correspondingly reduce commitments with respect
thereto) or other Senior Indebtedness or Pari Passu Indebtedness (provided
that if
the Company or any Guarantor shall so reduce Obligations under Pari Passu
Indebtedness, the Company shall equally and ratably reduce Obligations under
the
Securities by making an offer (in accordance with the procedures set forth
below
for an Asset Sale Offer) to all Holders to purchase at a purchase price equal
to
100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, the pro rata principal amount of Securities) or
Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each case
other than Indebtedness owed to the Company or an Affiliate of the
Company,
(ii) to
make
an investment in any one or more businesses (provided that if such investment
is
in the form of the acquisition of Capital Stock of a Person, such acquisition
results in such Person becoming a Restricted Subsidiary of the Company), assets,
or property or capital expenditures, in each case used or useful in a Similar
Business, and/or
(iii) to
make
an investment in any one or more businesses (provided that if such investment
is
in the form of the acquisition of Capital Stock of a Person, such
TRDOCS01/76765.8
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acquisition
results in such Person becoming a Restricted Subsidiary of the Company),
properties or assets that replace the properties and assets that are the subject
of such Asset Sale;
provided
that (x)
in the case of Sections 4.06(b)(ii) and (iii), a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such
commitment and, (y) in the event such binding commitment is later canceled
or
terminated for any reason before such Net Proceeds are so applied, the Company
or such Restricted Subsidiary enters into another binding commitment within
nine
months of such cancellation or termination of the prior binding commitment;
provided,
further
that the
Company or such Restricted Subsidiary may only enter into such a commitment
under clause (y) one time with respect to each Asset Sale.
Pending
the final application of any such Net Proceeds, the Company or such Restricted
Subsidiary of the Company may temporarily reduce Indebtedness under a revolving
credit facility, if any, or otherwise invest such Net Proceeds in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset
Sale
that are not applied as provided and within the time period set forth in the
first sentence of this Section 4.06(b) (it being understood that any portion
of
such Net Proceeds used to make an offer to purchase Securities, as described
in
clause (i) of this Section 4.06(b), shall be deemed to have been invested
whether or not such offer is accepted) shall be deemed to constitute “Excess
Proceeds.” When
the
aggregate amount of Excess Proceeds exceeds $15 million, the Company shall
make
an offer to all Holders of Securities (and, at the option of the Company, to
holders of any Pari Passu Indebtedness) (an “Asset Sale Offer”) to purchase the
maximum principal amount of Securities (and such Pari Passu Indebtedness),
that
is an integral multiple of $1,000 that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof (or, in the event such Pari Passu Indebtedness was issued with
significant original issue discount, 100% of the accreted value thereof), plus
accrued and unpaid interest and Additional Interest, if any (or, in respect
of
such Pari Passu Indebtedness, such lesser price, if any, as may be provided
for
by the terms of such Pari Passu Indebtedness), to the date fixed for the closing
of such offer, in accordance with the procedures set forth in this Section
4.06.
The Company shall commence an Asset Sale Offer with respect to Excess Proceeds
within ten Business Days after the date that Excess Proceeds exceeds $15 million
by mailing the notice required pursuant to the terms of Section 4.06(f), with
a
copy to the Trustee. To the extent that the aggregate amount of Securities
(and
such Pari Passu Indebtedness) tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds
for
general corporate purposes. If the aggregate principal amount of Securities
(and
such Pari Passu Indebtedness) surrendered by holders thereof exceeds the amount
of Excess Proceeds, the Trustee shall select the Securities to be purchased
in
the manner described in Section 4.06(e). Upon completion of any such Asset
Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
(c) The
Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations to the extent such laws or
regulations are applicable in connection with the repurchase of the Securities
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Company shall comply with the applicable securities laws and
TRDOCS01/76765.8
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regulations
and shall not be deemed to have breached its obligations described in this
Indenture by virtue thereof.
(d) Not
later
than the date upon which written notice of an Asset Sale Offer is delivered
to
the Trustee as provided above, the Company shall deliver to the Trustee an
Officers’ Certificate as to (i) the amount of the Excess Proceeds, (ii) the
allocation of the Net Proceeds from the Asset Sales pursuant to which such
Asset
Sale Offer is being made and (iii) the compliance of such allocation with the
provisions of Section 4.06(b). On such date, the Company shall also irrevocably
deposit with the Trustee or with a paying agent (or, if the Company or a Wholly
Owned Restricted Subsidiary is acting as the Paying Agent, segregate and hold
in
trust) an amount equal to the Excess Proceeds to be invested in Cash
Equivalents, as directed in writing by the Company, and to be held for payment
in accordance with the provisions of this Section 4.06. Upon the expiration
of
the period for which the Asset Sale Offer remains open (the “Offer Period”), the
Company shall deliver to the Trustee for cancellation the Securities or portions
thereof that have been properly tendered to and are to be accepted by the
Company. The Trustee (or the Paying Agent, if not the Trustee) shall, on the
date of purchase, mail or deliver payment to each tendering Holder in the amount
of the purchase price. In the event that the Excess Proceeds delivered by the
Company to the Trustee are greater than the purchase price of the Securities
tendered, the Trustee shall deliver the excess to the Company immediately after
the expiration of the Offer Period for application in accordance with Section
4.06.
(e) Holders
electing to have a Security purchased shall be required to surrender the
Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the purchase
date.
Holders shall be entitled to withdraw their election if the Trustee or the
Company receives not later than one Business Day prior to the Purchase Date,
a
telegram, telex, facsimile transmission or letter setting forth the name of
the
Holder, the principal amount of the Security which was delivered by the Holder
for purchase and a statement that such Holder is withdrawing his election to
have such Security purchased. If at the end of the Offer Period more Securities
(and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale Offer
than the Company is required to purchase, selection of such Securities for
purchase shall be made by the Trustee in compliance with the requirements of
the
principal national securities exchange, if any, on which such Securities are
listed, or if such Securities are not so listed, on a pro rata basis, by lot
or
by such other method as the Trustee shall deem fair and appropriate (and in
such
manner as complies with applicable legal requirements); provided
that no
Securities of $1,000 or less shall be purchased in part. Selection of such
Pari
Passu Indebtedness shall be made pursuant to the terms of such Pari Passu
Indebtedness.
(f) Notices
of an Asset Sale Offer shall be mailed by first class mail, postage prepaid,
at
least 30 but not more than 60 days before the purchase date to each Holder
of
Securities at such Holder’s registered address. If any Security is to be
purchased in part only, any notice of purchase that relates to such Security
shall state the portion of the principal amount thereof that has been or is
to
be purchased.
SECTION
4.07. Transactions
with Affiliates
.
(a) The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, make any payment to,
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or
sell,
lease, transfer or otherwise dispose of any of its properties or assets to,
or
purchase any property or assets from, or enter into or make or amend any
transaction or series of transactions, contract, agreement, understanding,
loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Company
(each of the foregoing, an “Affiliate Transaction”) involving aggregate
consideration in excess of $5 million, unless:
(i) such
Affiliate Transaction is on terms that are not materially less favorable to
the
Company or the relevant Restricted Subsidiary than those that could have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person; and
(ii) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $20 million, the Company delivers
to the Trustee a resolution adopted in good faith by the majority of the Board
of Directors of the Company, approving such Affiliate Transaction and set forth
in an Officers’ Certificate certifying that such Affiliate Transaction complies
with clause (i) above.
(b) The
provisions of Section 4.07(a) shall not apply to the following:
(i) (A)
transactions between or among the Company and/or any of its Restricted
Subsidiaries and (B) any merger of the Company and any direct parent of the
Company; provided
that
such parent shall have no material liabilities and no material assets other
than
cash, Cash Equivalents and the Capital Stock of the Company and such merger
is
otherwise in compliance with the terms of this Indenture and effected for a
bona
fide business purpose;
(ii) Restricted
Payments permitted by Section 4.04 and Permitted Investments;
(iii) (x)
the
entering into of any agreement to pay, and the payment of, annual management,
consulting, monitoring and advisory fees and expenses to the Sponsors in an
aggregate amount in any fiscal year not to exceed the greater of (A) $2.5
million and (B) 1.5% of EBITDA of the Company and its Restricted Subsidiaries
for the immediately preceding fiscal year; provided,
however,
that
any payment not made in any fiscal year may be carried forward and paid in
the
following two fiscal years and (y) the payment of the present value of all
amounts payable pursuant to any agreement described in clause (iii)(x) of
Section 4.07(b) in connection with the termination of such agreement;
(iv) the
payment of reasonable and customary fees and reimbursement of expenses paid
to,
and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary or any direct or
indirect parent of the Company;
(v) payments
by the Company or any of its Restricted Subsidiaries to the Sponsors made for
any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures, which payments are (x) made
pursuant to the
TRDOCS01/76765.8
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agreements
with the Sponsors described in the Offering Memorandum or (y) approved by a
majority of the Board of Directors of the Company in good faith;
(vi) transactions
in which the Company or any of its Restricted Subsidiaries, as the case may
be,
delivers to the Trustee a letter from an Independent Financial Advisor stating
that such transaction is fair to the Company or such Restricted Subsidiary
from
a financial point of view or meets the requirements of clause (i) of Section
4.07(a);
(vii) payments
or loans to employees or consultants which are approved by a majority of the
Board of Directors of the Company in good faith;
(viii) any
agreement as in effect as of the Issue Date or any amendment thereto (so long
as
any such agreement together with all amendments thereto, taken as a whole,
is
not more disadvantageous to the Holders of the Securities in any material
respect than the original agreement as in effect on the Issue Date) or any
transaction contemplated thereby as described in the Offering
Memorandum;
(ix) the
existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, Acquisition Documents,
any
stockholders agreement (including any registration rights agreement or purchase
agreement related thereto) to which it is a party as of the Issue Date and
any
amendment thereto or similar agreements which it may enter into thereafter;
provided,
however,
that
the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date
shall
only be permitted by this clause (ix) to the extent that the terms of any such
existing agreement together with all amendments thereto, taken as a whole,
or
new agreement are not otherwise more disadvantageous to the Holders of the
Securities in any material respect than the original agreement as in effect
on
the Issue Date;
(x) the
execution of the Transactions and the payment of all fees and expenses related
to the Transactions, including fees to the Sponsors, which are described in
the
Offering Memorandum;
(xi) (A)
transactions with customers, clients, suppliers or purchasers or sellers of
goods or services, in each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture, which are fair to the Company
and its Restricted Subsidiaries in the reasonable determination of the Board
of
Directors or the senior management of the Company, or are on terms at least
as
favorable as might reasonably have been obtained at such time from an
unaffiliated party or (B) transactions with joint ventures or Unrestricted
Subsidiaries entered into in the ordinary course of business;
(xii) any
transaction effected as part of a Qualified Receivables Financing;
(xiii) the
issuance of Equity Interests (other than Disqualified Stock) of the Company
to
any Person;
TRDOCS01/76765.8
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(xiv) the
issuances of securities or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
option and stock ownership plans or similar employee benefit plans approved
by
the Board of Directors of the Company or any direct or indirect parent of the
Company or of a Restricted Subsidiary of the Company, as appropriate, in good
faith;
(xv) the
entering into of any tax sharing agreement or arrangement and any payments
permitted by Section 4.04(b)(xii);
(xvi) any
contribution to the capital of the Company;
(xvii) transactions
permitted by, and complying with, Section 5.01;
(xviii) transactions
between the Company or any of its Restricted Subsidiaries and any Person, a
director of which is also a director of the Company or any direct or indirect
parent of the Company; provided,
however,
that
such director abstains from voting as a director of the Company or such direct
or indirect parent, as the case may be, on any matter involving such other
Person;
(xix) pledges
of Equity Interests of Unrestricted Subsidiaries; and
(xx) any
employment agreements entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business.
SECTION
4.08. Change
of
Control
.
(4)
Upon a
Change of Control, each Holder shall have the right to require the Company
to
repurchase all or any part of such Holder’s Securities at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), in accordance with the terms contemplated in this
Section 4.08; provided,
however,
that
notwithstanding the occurrence of a Change of Control, the Company shall not
be
obligated to purchase any Securities pursuant to this Section 4.08 in the event
that it has exercised its right to redeem such Securities in accordance with
Article 3 of this Indenture. In the event that at the time of such Change of
Control the terms of the Bank Indebtedness or other Senior Indebtedness restrict
or prohibit the repurchase of Securities pursuant to this Section 4.08, then
prior to the mailing of the notice to the Holders provided for in Section
4.08(b) but in any event within 30 days following any Change of Control, the
Company shall (i) repay in full all Bank Indebtedness and such Senior
Indebtedness, or (ii) obtain the requisite consent, if required, under the
agreements governing the Bank Indebtedness and such Senior Indebtedness to
permit the repurchase of the Securities as provided for in Section
4.08(b).
(b) Within
30
days following any Change of Control, except to the extent that the Company
has
exercised its right to redeem the Securities in accordance with Article 3 of
this Indenture, the Company shall mail a notice (a “Change of Control Offer”) to
each Holder with a copy to the Trustee stating:
(i) that
a
Change of Control has occurred and that such Holder has the right to require
the
Company to purchase all or a portion of such Holder’s Securities at
a
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purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Additional Interest, if any, to the date of purchase
(subject to the right of the Holders of record on the relevant record date
to
receive interest on the relevant interest payment date);
(ii) the
circumstances and relevant facts and financial information regarding such Change
of Control;
(iii) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
(iv) the
instructions determined by the Company, consistent with this Section 4.08,
that
a Holder must follow in order to have its Securities purchased.
(c) Holders
electing to have a Security purchased shall be required to surrender the
Security, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the purchase
date.
The Holders shall be entitled to withdraw their election if the Trustee or
the
Company receives not later than one Business Day prior to the purchase date
a
telegram, telex, facsimile transmission or letter setting forth the name of
the
Holder, the principal amount of the Security which was delivered for purchase
by
the Holder and a statement that such Holder is withdrawing his election to
have
such Security purchased. Holders whose Securities are purchased only in part
shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(d) On
the
purchase date, all Securities purchased by the Company under this Section shall
be delivered to the Trustee for cancellation, and the Company shall pay the
purchase price plus accrued and unpaid interest to the Holders entitled
thereto.
(e) Notwithstanding
the foregoing provisions of this Section, the Company shall not be required
to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in Section 4.08 applicable to a
Change of Control Offer made by the Company and purchases all Securities validly
tendered and not withdrawn under such Change of Control Offer.
(f) A
Change
of Control Offer may be made in advance of a Change of Control, and conditioned
upon such Change of Control, if a definitive agreement is in place for the
Change of Control at the time of making of the Change of Control Offer.
Securities repurchased by the Company pursuant to a Change of Control Offer
will
have the status of Securities issued but not outstanding or will be retired
and
canceled at the option of the Company. Securities purchased by a third party
pursuant to the preceding clause (e) will have the status of Securities issued
and outstanding.
(g) At
the
time the Company delivers Securities to the Trustee which are to be accepted
for
purchase, the Company shall also deliver an Officers’ Certificate stating that
such Securities are to be accepted by the Company pursuant to and in accordance
with the terms of this Section 4.08. A Security shall be deemed to have been
accepted for purchase at the time the
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Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(h) Prior
to
any Change of Control Offer, the Company shall deliver to the Trustee an
Officers’ Certificate stating that all conditions precedent contained herein to
the right of the Company to make such offer have been complied
with.
(i) The
Company shall comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Securities pursuant to this Section. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.08, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
SECTION
4.09. Compliance
Certificate
.
The
Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company, beginning with the fiscal year end on December
31,
2006, an Officers’ Certificate stating that in the course of the performance by
the signers of their duties as Officers of the Company they would normally
have
knowledge of any Default and whether or not the signers know of any Default
that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4)
of
the TIA.
SECTION
4.10. Further
Instruments and Acts
.
Upon
request of the Trustee, the Company shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to
carry out more effectively the purpose of this Indenture.
SECTION
4.11. Future
Guarantors
.
The
Company shall cause each Restricted Subsidiary that is a Domestic Subsidiary
(unless such Subsidiary is a Receivables Subsidiary) that
(i) guarantees
any Indebtedness of the Company or any of its Restricted Subsidiaries,
or
(ii) incurs
any Indebtedness or issues any shares of Disqualified Stock permitted to be
Incurred or issued pursuant to clauses (i) or (xii) of Section 4.03(b) or not
permitted to be Incurred by Section 4.03,
to
execute and deliver to the Trustee a supplemental indenture substantially in the
form of Exhibit D pursuant to which such Subsidiary shall guarantee payment
of
the Securities.
SECTION
4.12. Liens
.
The
Company shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create, Incur or suffer to exist any Lien on any asset
or property of the Company or such Restricted Subsidiary of the Company, or
any
income or profits therefrom, or assign or convey any right to receive income
therefrom, that secures any Indebtedness of the Company or any Guarantor unless
the Securities are equally and ratably secured with (or on a senior basis to,
in
the case of obligations subordinated in right of payment to the Securities)
the
obligations so secured until such time as such obligations are no
longer
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secured
by a Lien. The preceding sentence shall not require the Company or any
Restricted Subsidiary of the Company to secure the Securities if the Lien
consists of a Permitted Lien; provided
that any
Lien which is granted to secure the Securities or such Guarantee under this
Section 4.12 shall be automatically released and discharged at the same time
as
the release of the Lien that gave rise to the obligation to secure the
Securities or such Guarantee under this Section 4.12.
SECTION
4.13. Limitation
on Other Senior Subordinated Indebtedness
.
The
Company shall not, and shall not permit any Guarantor to, directly or
indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is
subordinate in right of payment to any Indebtedness of the Company or any
Indebtedness of any such Guarantor, as the case may be, unless such Indebtedness
is either:
(i) pari
passu in right of payment with the Securities or such Guarantor’s Guarantee, as
the case may be, or
(ii) subordinate
in right of payment to the Securities or such Guarantor’s Guarantee, as the case
may be.
SECTION
4.14. Maintenance
of Office or Agency
.
(5)
The
Company shall maintain an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee or Registrar) where Securities may be
surrendered for registration of transfer or for exchange and where notices
and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee
of
the location, and any change in the location, of such office or agency. If
at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
corporate trust office of the Trustee as set forth in Section
13.02.
(b) The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or
agency.
(c) The
Company hereby designates the corporate trust office of the Trustee or its
Agent
as such office or agency of the Company in accordance with Section
2.04.
ARTICLE
5
SUCCESSOR
COMPANY
SECTION
5.01. When
Company May Merge or Transfer Assets
.
(6)
The
Company shall not, directly or indirectly, consolidate or merge with or into
or
wind up or convert into (whether or not the Company is the surviving Person),
or
sell, assign, transfer, lease, convey
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or
otherwise dispose of all or substantially all of its properties or assets in
one
or more related transactions, to any Person unless:
(i) the
Company is the surviving Person or the Person formed by or surviving any such
consolidation, merger, winding up or conversion (if other than the Company)
or
to which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation, partnership or limited liability company
organized or existing under the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof (the Company or such Person,
as the case may be, being herein called the “Successor Company”); provided
that in
the case where the surviving Person is not a corporation, a co-obligor of the
Securities is a corporation;
(ii) the
Successor Company (if other than the Company) expressly assumes all the
obligations of the Company under this Indenture and the Securities pursuant
to
supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately
after giving effect to such transaction (and treating any Indebtedness which
becomes an obligation of the Successor Company or any of its Restricted
Subsidiaries as a result of such transaction as having been Incurred by the
Successor Company or such Restricted Subsidiary at the time of such transaction)
no Default or Event of Default shall have occurred and be
continuing;
(iv) immediately
after giving pro forma effect to such transaction, as if such transaction had
occurred at the beginning of the applicable four-quarter period,
either
(A) the
Successor Company would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.03(a); or
(B) the
Fixed
Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries
would be greater than such ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction;
(v) each
Guarantor, unless it is the other party to the transactions described above,
shall have by supplemental indenture confirmed that its Guarantee shall apply
to
such Person’s obligations under this Indenture and the Securities;
and
(vi) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
and
such supplemental indentures (if any) comply with this Indenture.
The
Successor Company shall succeed to, and be substituted for, the Company under
this Indenture and the Securities. Notwithstanding the foregoing clauses (iii)
and (iv) of this Section 5.01, (a) any Restricted Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company or to another Restricted Subsidiary, and (b) the Company may merge
with
an Affiliate incorporated solely for the purpose of reincorporating the Company
in another state of the United States, or may convert into a limited
liability
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company,
so long as the amount of Indebtedness of the Company and its Restricted
Subsidiaries is not increased thereby.
(b) Subject
to the provisions of Section 11.02(b) (which govern the release of a Guarantee
upon the sale or disposition of a Restricted Subsidiary of the Company that
is a
Guarantor), each Guarantor shall not, and the Company shall not permit any
Guarantor to, consolidate or merge with or into or wind up into (whether or
not
such Guarantor is the surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to, any Person (other than any such
sale, assignment, transfer, lease, conveyance or disposition in connection
with
the Transactions described in the Offering Memorandum) unless:
(i) such
Guarantor is the surviving Person or the Person formed by or surviving any
such
consolidation or merger (if other than such Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation, partnership or limited liability company organized or
existing under the laws of the United States, any state thereof, the District
of
Columbia, or any territory thereof (such Guarantor or such Person, as the case
may be, being herein called the “Successor Guarantor”);
(ii) the
Successor Guarantor (if other than such Guarantor) expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantor’s
Guarantee pursuant to a supplemental indenture or other documents or instruments
in form reasonably satisfactory to the Trustee; and
(iii) the
Successor Guarantor (if other than such Guarantor) shall have delivered or
caused to be delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
Except
as
otherwise provided in this Indenture, the Successor Guarantor shall succeed
to,
and be substituted for, such Guarantor under this Indenture and such Guarantor’s
Guarantee. Notwithstanding the foregoing, (1) a Guarantor may merge with an
Affiliate incorporated solely for the purpose of reincorporating such Guarantor
in another state of the United States, so long as the amount of Indebtedness
of
the Guarantor is not increased thereby and (2) a Guarantor may merge with
another Guarantor or the Company.
Notwithstanding
the foregoing, any Guarantor may consolidate or merge with or into or wind
up
into, or sell, assign, transfer, lease, convey or otherwise dispose of all
or
substantially all of its properties or assets (collectively, a “Transfer”) to,
(x) the Company or any Guarantor or (y) any Restricted Subsidiary of the Company
that is not a Guarantor; provided
that at
the time of each such Transfer pursuant to clause (y) the aggregate amount
of
all such Transfers since the Issue Date shall not exceed 5% of the consolidated
assets of the Company and the Guarantors as shown on the most recent available
balance sheet of the Company and the Restricted Subsidiaries after giving effect
to each such Transfer and including all Transfers occurring from and after
the
Issue Date (excluding Transfers in connection with the Transactions described
in
the Offering Memorandum).
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Article
6
DEFAULTS
AND REMEDIES
SECTION
6.01. Events
of
Default
.
An
“Event of Default” occurs if:
(a) the
Company defaults in any payment of interest on any Security when the same
becomes due and payable, whether or not such payment shall be prohibited by
Article 10, and such default continues for a period of 30 days,
(b) the
Company defaults in the payment of principal or premium, if any, of any Security
when due at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise, whether or not such payment shall
be
prohibited by Article 10,
(c) the
Company fails to comply with its obligations under Section 5.01,
(d) the
Company or any of its Restricted Subsidiaries fails to comply with any of its
agreements in the Securities or this Indenture (other than those referred to
in
clause (a), (b) or (c) above) and such failure continues for 60 days after
the
notice specified below,
(e) the
Company or any Significant Subsidiary fails to pay any Indebtedness (other
than
Indebtedness owing to the Company or a Restricted Subsidiary of the Company)
within any applicable grace period after final maturity or the acceleration
of
any such Indebtedness by the holders thereof because of a default, in each
case,
if the total amount of such Indebtedness unpaid or accelerated exceeds $20
million or its foreign currency equivalent,
(f) the
Company or any Significant Subsidiary of the Company pursuant to or within
the
meaning of any Bankruptcy Law:
(i) commences
a voluntary case;
(ii) consents
to the entry of an order for relief against it in an involuntary
case;
(iii) consents
to the appointment of a Custodian of it or for any substantial part of its
property; or
(iv) makes
a
general assignment for the benefit of its creditors or takes any comparable
action under any foreign laws relating to insolvency,
(g) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i) is
for
relief against the Company or any Significant Subsidiary of the Company in
an
involuntary case;
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(ii) appoints
a Custodian of the Company or any Significant Subsidiary of the Company or
for
any substantial part of its property; or
(iii) orders
the winding up or liquidation of the Company or any Significant Subsidiary
of
the Company;
or
any
similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days,
(h) the
Company or any Significant Subsidiary fails to pay final judgments aggregating
in excess of $20 million or its foreign currency equivalent (net of any amounts
which are covered by enforceable insurance policies issued by solvent carriers),
which judgments are not discharged, waived or stayed for a period of 60 days
following the entry thereof, or
(i) any
Guarantee of a Significant Subsidiary ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Guarantor denies or
disaffirms its obligations under this Indenture or any Guarantee and such
Default continues for 10 days after the notice specified below.
The
foregoing shall constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected
by
operation of law or pursuant to any judgment, decree or order of any court
or
any order, rule or regulation of any administrative or governmental
body.
The
term
“Bankruptcy Law” means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal or
state law for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A
Default
under clause (d) above shall not constitute an Event of Default until the
Trustee notifies the Company or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Company and the Trustee of the Default
and the Company does not cure such Default within the time specified in clause
(d) above after receipt of such notice. Such notice must specify the Default,
demand that it be remedied and state that such notice is a “Notice of Default.”
The Company shall deliver to the Trustee, within five (5) Business Days after
the occurrence thereof, written notice in the form of an Officers’ Certificate
of any event which is, or with the giving of notice or the lapse of time or
both
would become, an Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION
6.02. Acceleration
.
If an
Event of Default (other than an Event of Default specified in Section 6.01(f)
or
(g) with respect to the Company) occurs and is continuing, the Trustee upon
written request of Holders of at least 25% in principal amount of outstanding
Securities, shall declare to the Company and the Trustee that the principal
of,
premium, if any, and accrued but unpaid interest on all the Securities is due
and payable; provided,
however,
that so
long as any Bank Indebtedness remains outstanding, no such acceleration shall
be
effective until the earlier of (1) five (5) Business Days after the giving
of
written notice to the Company and the Representative under the Credit Agreement
and (2) the day on which any Bank
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Indebtedness
is accelerated. Upon such a declaration, such principal and interest shall
be
due and payable immediately. If an Event of Default specified in Section 6.01(f)
or (g) with respect to the Company occurs, the principal of, premium, if any,
and interest on all the Securities shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in principal amount of the Securities
by notice to the Trustee may rescind an acceleration and its consequences if
the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal
or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent
thereto.
In
the
event of any Event of Default specified in Section 6.01(e), such Event of
Default and all consequences thereof (excluding, however, any resulting payment
default) shall be annulled, waived and rescinded, automatically and without
any
action by the Trustee or the Holders of the Securities, if within 20 days after
such Event of Default arose the Company delivers an Officers’ Certificate to the
Trustee stating that (x) the Indebtedness or guarantee that is the basis for
such Event of Default has been discharged or (y) the holders thereof have
rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default or (z) the default that is the basis for
such Event of Default has been cured, it being understood that in no event
shall
an acceleration of the principal amount of the Securities as described above
be
annulled, waived or rescinded upon the happening of any such
events.
SECTION
6.03. Other
Remedies
.
If an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy at law or in equity to collect the payment of principal of or interest
on
the Securities or to enforce the performance of any provision of the Securities
or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute
a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of
any
other remedy. To the extent required by law, all available remedies are
cumulative.
SECTION
6.04. Waiver
of
Past Defaults
.
Provided the Securities are not then due and payable by reason of a declaration
of acceleration, the Holders of a majority in principal amount of the Securities
by written notice to the Trustee may waive an existing Default and its
consequences except (a) a Default in the payment of the principal of or interest
on a Security, (b) a Default arising from the failure to redeem or purchase
any
Security when required pursuant to the terms of this Indenture or (c) a Default
in respect of a provision that under Section 9.02 cannot be amended without
the
consent of each Holder affected. When a Default is waived, it is deemed cured
and the Company, the Trustee and the Holders will be restored to their former
positions and rights under this Indenture, but no such waiver shall extend
to
any subsequent or other Default or impair any consequent right.
SECTION
6.05. Control
by Majority
.
The
Holders of a majority in principal amount of the Securities may direct the
time,
method and place of conducting any proceeding for
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any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or, subject to Section 7.01, that the
Trustee determines is unduly prejudicial to the rights of any other Holder
or
that would involve the Trustee in personal liability; provided,
however,
that
the Trustee may take any other action deemed proper by the Trustee that is
not
inconsistent with such direction. Prior to taking any action under this
Indenture, the Trustee shall be entitled to indemnification satisfactory to
it
in its sole discretion against all losses and expenses caused by taking or
not
taking such action.
SECTION
6.06. Limitation
on Suits
.
(7)
Except
to enforce the right to receive payment of principal, premium (if any) or
interest when due, no Holder may pursue any remedy with respect to this
Indenture or the Securities unless:
(i) the
Holder gives to the Trustee written notice stating that an Event of Default
is
continuing;
(ii) the
Holders of at least 25% in principal amount of the Securities make a written
request to the Trustee to pursue the remedy;
(iii) such
Holder or Holders offer to the Trustee reasonable security or indemnity
satisfactory to it against any loss, liability or expense;
(iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(v) the
Holders of a majority in principal amount of the Securities do not give the
Trustee a direction inconsistent with the request during such 60-day
period.
(b) A
Holder
may not use this Indenture to prejudice the rights of another Holder or to
obtain a preference or priority over another Holder.
SECTION
6.07. Rights
of
the Holders to Receive Payment
.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed or provided for in the
Securities, or to bring suit for the enforcement of any such payment on or
after
such respective dates, shall not be impaired or affected without the consent
of
such Holder.
SECTION
6.08. Collection
Suit by Trustee
.
If an
Event of Default specified in Section 6.01(a) or (b) occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor on the Securities for the whole
amount then due and owing (together with interest on overdue principal and
(to
the extent lawful) on any unpaid interest at the rate provided for in the
Securities) and the amounts provided for in Section 7.07.
SECTION
6.09. Trustee
May File Proofs of Claim
.
The
Trustee may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for reasonable compensation, expenses disbursements and advances of the
Trustee (including counsel, accountants, experts or such other
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professionals
as the Trustee deems necessary, advisable or appropriate)) and the Holders
allowed in any judicial proceedings relative to the Company or any Guarantor,
their creditors or their property, shall be entitled to participate as a member,
voting or otherwise, of any official committee of creditors appointed in such
matters and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in
the
event that the Trustee shall consent to the making of such payments directly
to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION
6.10. Priorities
.
If the
Trustee collects any money or property pursuant to this Article 6, it shall
pay
out the money or property in the following order:
FIRST:
to
the Trustee for amounts due under Section 7.07;
SECOND:
to holders of Senior Indebtedness of the Company to the extent required by
Article 10 and to holders of Senior Indebtedness of the Guarantors to the extent
required by Article 12;
THIRD:
to
the Holders for amounts due and unpaid on the Securities for principal, premium,
if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
FOURTH:
to the Company or, to the extent the Trustee collects any amount for any
Guarantor, to such Guarantor.
The
Trustee may fix a record date and payment date for any payment to the Holders
pursuant to this Section. At least 15 days before such record date, the Trustee
shall mail to each Holder and the Company a notice that states the record date,
the payment date and amount to be paid.
SECTION
6.11. Undertaking
for Costs
.
In any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as Trustee,
a
court in its discretion may require the filing by any party litigant in the
suit
of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07
or a suit by Holders of more than 10% in principal amount of the
Securities.
SECTION
6.12. Waiver
of
Stay or Extension Laws
.
Neither
the Company nor any Guarantor (to the extent it may lawfully do so) shall at
any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Guarantor (to the extent that it
may
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lawfully
do so) hereby expressly waive all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted
to
the Trustee, but shall suffer and permit the execution of every such power
as
though no such law had been enacted.
ARTICLE
7
TRUSTEE
SECTION
7.01. Duties
of
Trustee
.
(8)
If an
Event of Default has occurred and is continuing, the Trustee shall exercise
the
rights and powers vested in it by this Indenture and use the same degree of
care
and skill in their exercise as a reasonable person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee (it being agreed that
the
permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty); and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. The Trustee shall be under no duty to make
any
investigation as to any statement contained in any such instance, but may accept
the same as conclusive evidence of the truth and accuracy of such statement
or
the correctness of such opinions. However, in the case of certificates or
opinions required by any provision hereof to be provided to it, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act or its own willful misconduct, except
that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.05; and
(iv) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers.
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(d) Every
provision of this Indenture that in any way relates to the Trustee is subject
to
paragraphs (a), (b) and (c) of this Section.
(e) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company.
(f) Money
held in trust by the Trustee need not be segregated from other funds except
to
the extent required by law.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions
of
this Section and to the provisions of the TIA.
SECTION
7.02. Rights
of
Trustee
.
(9)
The
Trustee may conclusively rely on any document believed by it to be genuine
and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officers’
Certificate or Opinion of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers;
provided,
however,
that
the Trustee’s conduct does not constitute willful misconduct or
negligence.
(e) The
Trustee may consult with counsel of its own selection and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder
in
good faith and in accordance with the advice or opinion of such
counsel.
(f) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other paper
or document unless requested in writing to do so by the Holders of not less
than
a majority in principal amount of the Securities at the time outstanding, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to
examine the books, records and premises of the Company, personally or by agent
or attorney, at the expense of the Company and shall incur no liability of
any
kind by reason of such inquiry or investigation.
(g) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity
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satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(h) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.
(i) The
Trustee shall not be liable for any action taken or omitted by it in good faith
at the direction of the Holders of not less than a majority in principal amount
of the Securities as to the time, method and place of conducting any proceedings
for any remedy available to the Trustee or the exercising of any power conferred
by the Indenture.
(j) Any
action taken, or omitted to be taken, by the Trustee in good faith pursuant
to
this Indenture upon the request or authority or consent of any person who,
at
the time of making such request or giving such authority or consent, is the
Holder of any Security shall be conclusive and binding upon future Holders
of
Securities and upon Securities executed and delivered in exchange therefor
or in
place thereof.
SECTION
7.03. Individual
Rights of Trustee
.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with
the
same rights it would have if it were not Trustee. Any Paying Agent or Registrar
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION
7.04. Trustee’s
Disclaimer
.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, any Guarantee or the Securities, it
shall not be accountable for the Company’s use of the proceeds from the
Securities, and it shall not be responsible for any statement of the Company
or
any Guarantor in this Indenture or in any document issued in connection with
the
sale of the Securities or in the Securities other than the Trustee’s certificate
of authentication. The Trustee shall not be charged with knowledge of any
Default or Event of Default under Sections 6.01(c), (d), (e), (h), or (i) or
of
the identity of any Significant Subsidiary unless either (a) a Trust Officer
shall have actual knowledge thereof or (b) the Trustee shall have received
written notice thereof in accordance with Section 13.02 hereof from the Company,
any Guarantor or any Holder. In accepting the trust hereby created, the Trustee
acts solely as Trustee for the Holders of the Securities and not in its
individual capacity and all persons, including without limitation the Holders
of
Securities and the Company having any claim against the Trustee arising from
this Indenture shall look only to the funds and accounts held by the Trustee
hereunder for payment except as otherwise provided herein.
SECTION
7.05. Notice
of
Defaults
.
If a
Default occurs and is continuing and if it is actually known to the Trustee,
the
Trustee shall mail to each Holder notice of the Default within the earlier
of 90
days after it occurs or 30 days after it is actually known to a Trust Officer
or
written notice of it is received by the Trustee. Except in the case of a Default
in the payment of principal of, premium (if any) or interest on any Security,
the Trustee may withhold the notice
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if
and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the Holders.
SECTION
7.06. Reports
by Trustee to the Holders
.
As
promptly as practicable after each September 30 beginning with the September
30
following the date of this Indenture, and in any event prior to September 30
in
each year, the Trustee shall mail to each Holder a brief report dated as of
such
September 30 that complies with Section 313(a) of the TIA if and to the extent
required thereby. The Trustee shall also comply with Section 313(b) of the
TIA.
A
copy of
each report at the time of its mailing to the Holders shall be filed with the
SEC and each stock exchange (if any) on which the Securities are listed. The
Company agrees to notify promptly the Trustee whenever the Securities become
listed on any stock exchange and of any delisting thereof.
SECTION
7.07. Compensation
and Indemnity
.
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its services. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the
Trustee upon request for all reasonable out-of-pocket expenses incurred or
made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee’s agents, counsel, accountants and
experts. The Company and each Guarantor, jointly and severally shall indemnify
the Trustee against any and all loss, liability, claim, damage or expense
(including reasonable attorneys’ fees and expenses) incurred by or in connection
with the acceptance or administration of this trust and the performance of
its
duties hereunder, including the costs and expenses of enforcing this Indenture
or Guarantee against the Company or a Guarantor (including this Section 7.07)
and defending itself against or investigating any claim (whether asserted by
the
Company, any Guarantor, any Holder or any other Person). The obligation to
pay
such amounts shall survive the payment in full or defeasance of the Securities
or the removal or resignation of the Trustee. The Trustee shall notify the
Company of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; provided,
however,
that
any failure so to notify the Company shall not relieve the Company or any
Guarantor of its indemnity obligations hereunder. The Company shall defend
the
claim and the indemnified party shall provide reasonable cooperation at the
Company’s expense in the defense. Such indemnified parties may have separate
counsel and the Company and the Guarantors, as applicable shall pay the fees
and
expenses of such counsel; provided,
however,
that
the Company shall not be required to pay such fees and expenses if it assumes
such indemnified parties’ defense and, in such indemnified parties’ reasonable
judgment, there is no conflict of interest between the Company and the
Guarantors, as applicable, and such parties in connection with such defense.
The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by an indemnified party through such party’s own willful
misconduct, negligence or bad faith.
To
secure
the Company’s and the Guarantors’ payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property
held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
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The
Company’s and the Guarantors’ payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to
the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(f) or (g) with respect to
the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
repayment of such funds or adequate indemnity against such risk or liability
is
not assured to its satisfaction.
SECTION
7.08. Replacement
of Trustee
.
(10)
The
Trustee may resign at any time by so notifying the Company. The Holders of
a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(i) the
Trustee fails to comply with Section 7.10;
(ii) the
Trustee is adjudged bankrupt or insolvent;
(iii) a
receiver or other public officer takes charge of the Trustee or its property;
or
(iv) the
Trustee otherwise becomes incapable of acting.
(b) If
the
Trustee resigns, is removed by the Company or by the Holders of a majority
in
principal amount of the Securities and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee
for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
(c) A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon the resignation or removal of
the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to the Holders. The
retiring Trustee shall promptly transfer all property held by it as Trustee
to
the successor Trustee, subject to the Lien provided for in Section
7.07.
(d) If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee or the Holders of 10% in principal
amount of the Securities may petition at the expense of the Company any court
of
competent jurisdiction for the appointment of a successor Trustee.
(e) If
the
Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign
is stayed as provided in Section 310(b) of the TIA, any Holder who has been
a
bona
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fide
holder of a Security for at least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) Notwithstanding
the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION
7.09. Successor
Trustee by Merger
.
If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
In
case
at the time such successor or successors by merger, conversion or consolidation
to the Trustee shall succeed to the trusts created by this Indenture any of
the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and in case at that
time
any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION
7.10. Eligibility;
Disqualification
.
The
Trustee shall at all times satisfy the requirements of Section 310(a) of the
TIA. The Trustee shall have a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
The Trustee shall comply with Section 310(b) of the TIA, subject to its right
to
apply for a stay of its duty to resign under the penultimate paragraph of
Section 310(b) of the TIA; provided,
however,
that
there shall be excluded from the operation of Section 310(b)(1) of the TIA
any
series of securities issued under this Indenture and any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the TIA are met.
SECTION
7.11. Preferential
Collection of Claims Against Company
.
The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned
or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
ARTICLE
8
DISCHARGE
OF INDENTURE; DEFEASANCE
SECTION
8.01. Discharge
of Liability on Securities; Defeasance
.
This
Indenture shall be discharged and shall cease to be of further effect (except
as
to surviving rights of registration of transfer or exchange of Securities,
as
expressly provided for in this Indenture) as to all outstanding
Securities:
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(a) when
(i)
all the Securities theretofore authenticated and delivered (other than
Securities pursuant to Section 2.08 which have been replaced or paid and
Securities for whose payment money has theretofore been deposited in trust
or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation or (ii) all of the Securities (a) have become due and payable,
(b)
will become due and payable at their stated maturity within one year or (c)
if
redeemable at the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company has irrevocably deposited or caused to be deposited with the
Trustee cash in U.S. Dollars, U.S. Government Obligations or a combination
thereof in an amount sufficient in the written opinion of a firm of independent
public accountants delivered to the Trustee (which delivery shall only be
required if Government Obligations have been so deposited) to pay and discharge
the entire Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, for principal of, premium, if any, and interest on
the
Securities to the date of deposit together with irrevocable instructions from
the Company directing the Trustee to apply such funds to the payment thereof
at
maturity or redemption, as the case may be;
(b) the
Company and/or the Guarantors have paid all other sums payable under this
Indenture; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating
to
the satisfaction and discharge of this Indenture have been complied
with.
Subject
to Sections 8.01(c) and 8.02, the Company at any time may terminate (i) all
of
its obligations under the Securities and this Indenture (with respect to such
Securities) (“legal defeasance option”) or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12 and 4.13 and the
operation of Section 5.01 and Sections 6.01(c), 6.01(d), 6.01(e), 6.01(f) (with
respect to Significant Subsidiaries of the Company only), 6.01(g) (with respect
to Significant Subsidiaries of the Company only), 6.01(h) and 6.01(i) (“covenant
defeasance option”). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. In the
event that the Company terminates all of its obligations under the Securities
and this Indenture (with respect to such Securities) by exercising its legal
defeasance option or its covenant defeasance option, the obligations of each
Guarantor under its Guarantee of such Securities shall be terminated
simultaneously with the termination of such obligations.
If
the
Company exercises its legal defeasance option, payment of the Securities so
defeased may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities so defeased
may not be accelerated because of an Event of Default specified in Section
6.01(c), 6.01(d), 6.01(e), 6.01(f) (with respect to Significant Subsidiaries
of
the Company only), 6.01(g) (with respect to Significant Subsidiaries of the
Company only), 6.01(h) or 6.01(i) or because of the failure of the Company
to
comply with Section 5.01.
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Upon
satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations
that
the Company terminates.
(d) Notwithstanding
clauses (a) and (b) above, the Company’s obligations in Sections 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in this Article 8 shall survive until
the
Securities have been paid in full. Thereafter, the Company’s obligations in
Sections 7.07, 8.05 and 8.06 shall survive such satisfaction and
discharge.
SECTION
8.02. Conditions
to Defeasance
.
(11)
The
Company may exercise its legal defeasance option or its covenant defeasance
option only if:
(i) the
Company irrevocably deposits in trust with the Trustee cash in U.S. Dollars,
U.S. Government Obligations or a combination thereof in an amount sufficient
or
Government Obligations, the principal of and the interest on which will be
sufficient, or a combination thereof sufficient, to pay the principal of and
premium (if any) and interest on the Securities when due at maturity or
redemption, as the case may be, including interest thereon to maturity or such
redemption date;
(ii) the
Company delivers to the Trustee a certificate from a nationally recognized
firm
of independent accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on the deposited U.S.
Government Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay principal,
premium, if any, and interest when due on all the Securities to maturity or
redemption, as the case may be;
(iii) 123
days
pass after the deposit is made and during the 123-day period no Default
specified in Section 6.01(f) or (g) with respect to the Company occurs which
is
continuing at the end of the period;
(iv) the
deposit does not constitute a default under any other agreement binding on
the
Company and is not prohibited by Article 10;
(v) in
the
case of the legal defeasance option, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (1) the Company has received from,
or
there has been published by, the Internal Revenue Service a ruling, or (2)
since
the date of this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and
defeasance and will be subject to Federal income tax on the same amounts, in
the
same manner and at the same times as would have been the case if such deposit
and defeasance had not occurred;
(vi) impair
the right of any holder to receive payment of principal of, premium, if any,
and
interest on such holder’s Securities on or after the due dates therefore or to
institute suit for the enforcement of any payment on or with respect to such
holder’s Securities;
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(vii) in
the
case of the covenant defeasance option, the Company shall have delivered to
the
Trustee an Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit
and defeasance and will be subject to Federal income tax on the same amounts,
in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(viii) the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance and
discharge of the Securities to be so defeased and discharged as contemplated
by
this Article 8 have been complied with.
(b) Before
or
after a deposit, the Company may make arrangements satisfactory to the Trustee
for the redemption of such Securities at a future date in accordance with
Article 3.
SECTION
8.03. Application
of Trust Money
.
The
Trustee shall hold in trust money or Government Obligations (including proceeds
thereof) deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from Government Obligations through each Paying
Agent and in accordance with this Indenture to the payment of principal of
and
interest on the Securities so discharged or defeased. Money and securities
so
held in trust are not subject to Article 10 or 12.
SECTION
8.04. Repayment
to Company
.
Each of
the Trustee and each Paying Agent shall promptly turn over to the Company upon
request any money or Government Obligations held by it as provided in this
Article which, in the written opinion of nationally recognized firm of
independent public accountants delivered to the Trustee (which delivery shall
only be required if Government Obligations have been so deposited), are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent discharge or defeasance in accordance with this
Article.
Subject
to any applicable abandoned property law, the Trustee and each Paying Agent
shall pay to the Company upon written request any money held by them for the
payment of principal or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to the money must look to the Company for payment
as general creditors, and the Trustee and each Paying Agent shall have no
further liability with respect to such monies.
SECTION
8.05. Indemnity
for Government Obligations
.
The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited Government Obligations or the
principal and interest received on such Government Obligations.
SECTION
8.06. Reinstatement
.
If the
Trustee or any Paying Agent is unable to apply any money or Government
Obligations in accordance with this Article 8 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
obligations under this Indenture and the Securities so discharged or defeased
shall be revived and reinstated
TRDOCS01/76765.8
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as
though
no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or any Paying Agent is permitted to apply all such money or Government
Obligations in accordance with this Article 8; provided,
however,
that,
if the Company has made any payment of principal of or interest on, any such
Securities because of the reinstatement of its obligations, the Company shall
be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Obligations held by the Trustee or any
Paying Agent.
ARTICLE
9
AMENDMENTS
AND WAIVERS
SECTION
9.01. Without
Consent of the Holders
.
(12)
The
Company and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Holder:
(i) to
cure
any ambiguity, omission, defect or inconsistency;
(ii) to
comply
with Article 5;
(iii) to
provide for uncertificated Securities in addition to or in place of certificated
Securities; provided,
however,
that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(iv) to
make
any change in Article 10 or Article 12 that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company or a
Guarantor (or Representatives thereof) under Article 10 or Article 12,
respectively;
(v) to
add
additional Guarantees with respect to the Securities or to secure the
Securities;
(vi) to
add to
the covenants of the Company for the benefit of the Holders or to surrender
any
right or power herein conferred upon the Company;
(vii) to
comply
with any requirement of the SEC in connection with qualifying or maintaining
the
qualification of, this Indenture under the TIA;
(viii) to
make
any change that does not adversely affect the rights of any Holder;
or
(ix) to
provide for the issuance of the Exchange Securities or Additional Securities,
which shall have terms substantially identical in all material respects to
the
Initial Securities, and which shall be treated, together with any outstanding
Initial Securities, as a single issue of securities.
(b) An
amendment under this Section 9.01 may not make any change that adversely affects
the rights under Article 10 or Article 12 of any holder of Senior Indebtedness
of the Company or a Guarantor then outstanding unless the holders of such Senior
Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
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After
an
amendment under this Section 9.01 becomes effective, the Company shall mail
to
the Holders a notice briefly describing such amendment. The failure to give
such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.01.
SECTION
9.02. With
Consent of the Holders
.
(13)
The
Company and the Trustee may amend this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of
the
Securities then outstanding voting as a single class (including consents
obtained in connection with a tender offer or exchange for the Securities).
However, without the consent of each Holder of an outstanding Security affected,
an amendment may not:
(i) reduce
the amount of Securities whose Holders must consent to an
amendment,
(ii) reduce
the rate of or extend the time for payment of interest on any
Security,
(iii) reduce
the principal of or change the Stated Maturity of any Security,
(iv) reduce
the premium payable upon the redemption of any Security or change the time
at
which any Security may be redeemed in accordance with Article 3,
(v) make
any
Security payable in money other than that stated in such Security,
(vi) make
any
change in Article 10 or Article 12 that adversely affects the rights of any
Holder under Article 10 or Article 12,
(vii) impair
the right of any Holder to receive payment of principal of or premium, if any,
and interest on such Holder’s Securities on or after the due dates therefor or
to institute suit for the enforcement of any payment on or with respect to
such
Holder’s Securities,
(viii) make
any
change in Section 6.04 or 6.07 or the second sentence of this Section 9.02,
or
(ix) modify
any Guarantees in any manner adverse to the Holders.
It
shall
not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
An
amendment under this Section 9.02 may not make any change that adversely affects
the rights under Article 10 or Article 12 of any holder of Senior Indebtedness
then outstanding unless the holders of such Senior Indebtedness (or any group
or
Representative thereof authorized to give a consent) consent to such
change.
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After
an
amendment under this Section 9.02 becomes effective, the Company shall mail
to
the Holders a notice briefly describing such amendment. The failure to give
such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.02.
SECTION
9.03. Compliance
with Trust Indenture Act
.
From
the date on which this Indenture is qualified under the TIA, every amendment,
waiver or supplement to this Indenture or the Securities shall comply with
the
TIA as then in effect.
SECTION
9.04. Revocation
and Effect of Consents and Waivers
.
(14)
A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder’s Security, even if
notation of the consent or waiver is not made on the Security. However, any
such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s
Security or portion of the Security if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers’
Certificate from the Company certifying that the requisite principal amount
of
Securities have consented. After an amendment or waiver becomes effective,
it
shall bind every Holder. An amendment or waiver becomes effective upon the
(i)
receipt by the Company or the Trustee of consents by the Holders of the
requisite principal amount of securities, (ii) satisfaction of conditions to
effectiveness as set forth in this Indenture and any indenture supplemental
hereto containing such amendment or waiver and (iii) execution of such amendment
or waiver (or supplemental indenture) by the Company and the
Trustee.
(b) The
Company may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date.
No
such consent shall be valid or effective for more than 120 days after such
record date.
SECTION
9.05. Notation
on or Exchange of Securities
.
If an
amendment, supplement or waiver changes the terms of a Security, the Company
may
require the Holder of the Security to deliver it to the Trustee. The Trustee
may
place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure
to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
SECTION
9.06. Trustee
to Sign Amendments
.
The
Trustee shall sign any amendment, supplement or waiver authorized pursuant
to
this Article 9 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, the Trustee shall be entitled to receive
indemnity reasonably satisfactory to it and shall be provided with, and (subject
to Section
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7.01)
shall be fully protected in relying upon, an Officers’ Certificate and an
Opinion of Counsel stating that such amendment, supplement or waiver is
authorized or permitted by this Indenture and that such amendment, supplement
or
waiver is the legal, valid and binding obligation of the Company and the
Guarantors, enforceable against them in accordance with its terms, subject
to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
SECTION
9.07. Payment
for Consent
.
Neither
the Company nor any Affiliate of the Company shall, directly or indirectly,
pay
or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid to all Holders that so consent,
waive or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
SECTION
9.08. Additional
Voting Terms; Calculation of Principal Amount
.
All
Securities issued under this Indenture shall vote and consent together on all
matters (as to which any of such Securities may vote) as one class and no series
of Securities will have the right to vote or consent as a separate class on
any
matter. Determinations as to whether Holders of the requisite aggregate
principal amount of Securities have concurred in any direction, waiver or
consent shall be made in accordance with this Article 9 and Section
2.14.
ARTICLE
10
SUBORDINATION
OF THE SECURITIES
SECTION
10.01. Agreement
to Subordinate
.
The
Company agrees, and each Holder by accepting a Security agrees, that the
Indebtedness evidenced by the Securities is subordinated in right of payment,
to
the extent and in the manner provided in this Article 10, to the prior payment
in full of all existing and future Senior Indebtedness of the Company and that
the subordination is for the benefit of and enforceable by the holders of such
Senior Indebtedness. The Securities shall in all respects rank pari passu in
right of payment with all existing and future Pari Passu Indebtedness of the
Company and shall rank senior in right of payment to all existing and future
Subordinated Indebtedness of the Company; and only Indebtedness of the Company
that is Senior Indebtedness of the Company shall rank senior to the Securities
in accordance with the provisions set forth herein. For purposes of this Article
10, the Indebtedness evidenced by the Securities shall be deemed to include
any
Additional Interest payable pursuant to the provisions set forth in the
Securities and the Registration Agreement. All provisions of this Article 10
shall be subject to Section 10.12.
SECTION
10.02. Liquidation,
Dissolution, Bankruptcy
.
Upon
any payment or distribution of the assets of the Company to creditors upon
a
total or partial liquidation or a total or partial dissolution of the Company
or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(a) holders
of Senior Indebtedness of the Company shall be entitled to receive payment
in
full in cash of such Senior Indebtedness (including interest accruing after,
or
which would accrue but for, the commencement of any such proceeding at the
rate
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specified
in the applicable Senior Indebtedness, whether or not a claim for such interest
would be allowed) before Holders shall be entitled to receive any payment of
principal of or interest on the Securities; and
(b) until
the
Senior Indebtedness of the Company is paid in full in cash, any payment or
distribution to which Holders would be entitled but for this Article 10 shall
be
made to holders of such Senior Indebtedness as their interests may appear,
except that the Holders may receive and retain (a) Permitted Junior Securities
and (b) payments made from the trust described under Article 8, so long as,
on
the date or dates the respective amounts were paid into the trust such payments
were made with respect to the Securities without violating this Article
10.
SECTION
10.03. Default
on Designated Senior Indebtedness
.
The
Company may not pay principal of, premium (if any) or interest on, the
Securities or make any deposit pursuant to the provisions described under
Section 8.01 and may not otherwise purchase, redeem or otherwise retire any
Securities (except that the Holders may receive and retain (a) Permitted Junior
Securities and (b) payments made from the trust described under Article 8)
(collectively, “pay the Securities”) if:
(1) a
default
in the payment of the principal of, premium, if any, or interest on any
Designated Senior Indebtedness of the Company occurs and is continuing or any
other amount owing in respect of any Designated Senior Indebtedness of the
Company is not paid when due, or
(2) any
other
default on Designated Senior Indebtedness of the Company occurs and the maturity
of such Designated Senior Indebtedness of the Company is accelerated in
accordance with its terms,
unless,
in either case, the default has been cured or waived and any such acceleration
has been rescinded or such Designated Senior Indebtedness has been paid in
full
in cash; provided,
however,
the
Company may pay the Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of the holders of such Designated Senior Indebtedness with
respect to which either of the events set forth in clause (1) or (2) of this
sentence has occurred and is continuing. During the continuance of any default
(other than a default described in clause (1) or (2) of the preceding sentence)
with respect to any Designated Senior Indebtedness of the Company pursuant
to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Securities for a period (a “Payment Blockage Period”) commencing upon the
receipt by the Trustee (with a copy to the Company) of written notice (a
“Blockage Notice”) of such default from the Representative of the holders of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice; (ii) by
repayment in full in cash of such Designated Senior Indebtedness; or (iii)
because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the
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first
sentence of this Section 10.03 and in Section 10.02), unless the holders of
such
Designated Senior Indebtedness or the Representative of such holders shall
have
accelerated the maturity of such Designated Senior Indebtedness or a payment
default exists, the Company may resume payments on the Securities after the
end
of such Payment Blockage Period. Not more than one Blockage Notice may be given
in any consecutive 360-day period, irrespective of the number of defaults with
respect to Designated Senior Indebtedness during such period. In no event,
however, may the total number of days during which any Payment Blockage Period
is in effect exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section 10.03, no default or event of default
that
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for
a
period of not less than 90 consecutive days (it being understood that any
subsequent action or any breach of any financial covenants for a period
commencing after the date of commencement of such Payment Blockage Period that,
in either case, would give rise to an event of default pursuant to any provision
of the Designated Senior Indebtedness under which an event of default previously
existed or was continuing shall constitute a new event of default for this
purpose).
SECTION
10.04. Acceleration
of Payment of Securities
.
If
payment of the Securities is accelerated because of an Event of Default, the
Company or the Trustee (provided
that the
Trustee shall have received written notice from the Company, on which notice
the
Trustee shall be entitled to conclusively rely) shall promptly notify the
holders of the Designated Senior Indebtedness of the Company (or their
Representative) of the acceleration.
SECTION
10.05. When
Distribution Must Be Paid Over
.
If a
distribution is made to the Holders that because of this Article 10 should
not
have been made to them, the Holders who receive the distribution shall hold
it
in trust for holders of Senior Indebtedness of the Company and pay it over
to
them as their interests may appear.
SECTION
10.06. Subrogation
.
After
all Senior Indebtedness of the Company is paid in full and until the Securities
are paid in full, the Holders shall be subrogated to the rights of holders
of
such Senior Indebtedness to receive distributions applicable to Senior
Indebtedness of the Company. A distribution made under this Article 10 to
holders of such Senior Indebtedness which otherwise would have been made to
the
Holders is not, as between the Company and the Holders, a payment by the Company
on such Senior Indebtedness.
SECTION
10.07. Relative
Rights
.
This
Article 10 defines the relative rights of the Holders and holders of Senior
Indebtedness of the Company. Nothing in this Indenture shall:
(a) impair,
as between the Company and the Holders, the obligation of the Company, which
is
absolute and unconditional, to pay principal of and interest on the Securities
in accordance with their terms; or
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(b) prevent
the Trustee or any Holder from exercising its available remedies upon a Default,
subject to the rights of holders of Senior Indebtedness of the Company to
receive distributions otherwise payable to the Holders.
SECTION
10.08. Subordination
May Not Be Impaired by Company
.
No
right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION
10.09. Rights
of
Trustee and Paying Agent
.
Notwithstanding Section 10.03, the Trustee or any Paying Agent may continue
to
make payments on the Securities and shall not be charged with knowledge of
the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may
not
be made under this Article 10. The Company, the Registrar, any Paying Agent,
a
Representative or a holder of Senior Indebtedness of the Company may give the
notice; provided,
however,
that,
if an issue of Senior Indebtedness of the Company has a Representative, only
the
Representative may give the notice.
The
Trustee in its individual or any other capacity may hold Senior Indebtedness
of
the Company with the same rights it would have if it were not Trustee. The
Registrar and any Paying Agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article 10 with respect
to
any Senior Indebtedness of the Company which may at any time be held by it,
to
the same extent as any other holder of such Senior Indebtedness; and nothing
in
Article 7 shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article 10 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07 or any other Section of this Indenture.
SECTION
10.10. Distribution
or Notice to Representative
.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Company, the distribution may be made and the notice given
to their Representative (if any).
SECTION
10.11. Article
10 Not to Prevent Events of Default or Limit Right to Accelerate
.
The
failure to make a payment pursuant to the Securities by reason of any provision
in this Article 10 shall not be construed as preventing the occurrence of a
Default. Nothing in this Article 10 shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the
Securities.
SECTION
10.12. Trust
Monies Not Subordinated
.
Notwithstanding anything contained herein to the contrary, payments from money
or the proceeds of Government Obligations held in trust under Article 8 by
the
Trustee and deposited at a time when permitted by the subordination provisions
of this Article 10 for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness of the Company or subject to the restrictions set forth in this
Article 10, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Indebtedness of the Company or
any
other creditor of the Company.
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SECTION
10.13. Trustee
Entitled to Rely
.
Upon
any payment or distribution pursuant to this Article 10, the Trustee and the
Holders shall be entitled to rely (a) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 10.02 are pending, (b) upon a certificate of the liquidating trustee
or
agent or other Person making such payment or distribution to the Trustee or
to
the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to this Article 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant
to
this Article 10.
SECTION
10.14. Trustee
to Effectuate Subordination
.
Each
Holder by accepting a Security authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Company as provided in this Article 10 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION
10.15. Trustee
Not Fiduciary for Holders of Senior Indebtedness
.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if
it
shall mistakenly pay over or distribute to the Holders or the Company or any
other Person money or assets to which any holders of Senior Indebtedness of
the
Company shall be entitled by virtue of this Article 10 or
otherwise.
SECTION
10.16. Reliance
by Holders of Senior Indebtedness on Subordination Provisions
.
Each
Holder by accepting a Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of the Company, whether
such Senior Indebtedness was created or acquired before or after the issuance
of
the Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing
or
releasing the subordination provided in this Article 10 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of
the
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Company,
do any one or more of the following: (i) change the manner, place or terms
of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
of the Company, or otherwise amend or supplement in any manner Senior
Indebtedness of the Company, or any instrument evidencing the same or any
agreement under which Senior Indebtedness of the Company is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness of the Company; (iii) release any
Person liable in any manner for the payment or collection of Senior Indebtedness
of the Company; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
ARTICLE
11
GUARANTEES
SECTION
11.01. Guarantees
.
(15)
Each
Guarantor hereby jointly and severally, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, to each Holder
and
to the Trustee and its successors and assigns (i) the full and punctual payment
when due, whether at Stated Maturity, by acceleration, by redemption or
otherwise, of all obligations of the Company under this Indenture (including
obligations to the Trustee) and the Securities, whether for payment of principal
of, premium, if any, or interest on in respect of the Securities and all other
monetary obligations of the Company under this Indenture and the Securities
and
(ii) the full and punctual performance within applicable grace periods of all
other obligations of the Company whether for fees, expenses, indemnification
or
otherwise under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed,
in
whole or in part, without notice or further assent from each such Guarantor,
and
that each such Guarantor shall remain bound under this Article 11
notwithstanding any extension or renewal of any Guaranteed
Obligation.
(b) Each
Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment. Each Guarantor waives notice of any default under the Securities
or the Guaranteed Obligations. The obligations of each Guarantor hereunder
shall
not be affected by (i) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Company or any
other Person under this Indenture, the Securities or any other agreement or
otherwise; (ii) any extension or renewal of this Indenture, the Securities
or
any other agreement; (iii) any rescission, waiver, amendment or modification
of
any of the terms or provisions of this Indenture, the Securities or any other
agreement; (iv) the release of any security held by any Holder or the Trustee
for the Guaranteed Obligations or any Guarantor; (v) the failure of any Holder
or Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (vi) any change in the ownership of such Guarantor,
except as provided in Section 11.02(b).
(c) Each
Guarantor hereby waives any right to which it may be entitled to have its
obligations hereunder divided among the Guarantors, such that such Guarantor’s
obligations would be less than the full amount claimed. Each Guarantor hereby
waives any right to which it may be entitled to have the assets of the Company
first be used and depleted as
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payment
of the Company’s or such Guarantor’s obligations hereunder prior to any amounts
being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby
waives any right to which it may be entitled to require that the Company be
sued
prior to an action being initiated against such Guarantor.
(d) Each
Guarantor further agrees that its Guarantee herein constitutes a guarantee
of
payment, performance and compliance when due (and not a guarantee of collection)
and waives any right to require that any resort be had by any Holder or the
Trustee to any security held for payment of the Guaranteed
Obligations.
(e) The
Guarantee of each Guarantor is, to the extent and in the manner set forth in
Article 12, subordinated and subject in right of payment to the prior payment
in
full of the principal of and premium, if any, and interest on all Senior
Indebtedness of the relevant Guarantor and is made subject to such provisions
of
this Indenture.
(f) Except
as
expressly set forth in Sections 8.01(b), 11.02 and 11.06, the obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise. Without limiting the generality of the foregoing,
the
obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities
or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk
of
any Guarantor or would otherwise operate as a discharge of any Guarantor as
a
matter of law or equity.
(g) Each
Guarantor agrees that its Guarantee shall remain in full force and effect until
payment in full of all the Guaranteed Obligations. Each Guarantor further agrees
that its Guarantee herein shall continue to be effective or be reinstated,
as
the case may be, if at any time payment, or any part thereof, of principal
of or
interest on any Guaranteed Obligation is rescinded or must otherwise be restored
by any Holder or the Trustee upon the bankruptcy or reorganization of the
Company or otherwise.
(h) In
furtherance of the foregoing and not in limitation of any other right which
any
Holder or the Trustee has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Company to pay the principal of or interest
on
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Guaranteed Obligation, each Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause
to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum
of
(i) the unpaid principal amount of such Guaranteed Obligations, (ii) accrued
and
unpaid interest on such Guaranteed Obligations (but only to the extent not
prohibited by applicable law) and (iii) all other monetary obligations of the
Company to the Holders and the Trustee.
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(i) Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any Guaranteed Obligations guaranteed
hereby until payment in full of all Guaranteed Obligations and all obligations
to which the Guaranteed Obligations are subordinated as provided in Article
12.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the Guaranteed
Obligations guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of any Guarantee herein, notwithstanding any stay, injunction
or
other prohibition preventing such acceleration in respect of the Guaranteed
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6, such
Guaranteed Obligations (whether or not due and payable) shall forthwith become
due and payable by such Guarantor for the purposes of this Section
11.01.
(j) Each
Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder
in enforcing any rights under this Section 11.01.
(k) Upon
request of the Trustee, each Guarantor shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to
carry out more effectively the purpose of this Indenture.
SECTION
11.02. Limitation
on Liability
.
(16)
Any term
or provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of the Guaranteed Obligations guaranteed hereunder by any
Guarantor shall not exceed the maximum amount that can be hereby guaranteed
without rendering this Indenture, as it relates to such Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer
or
similar laws affecting the rights of creditors generally.
(b) A
Guarantee as to any Guarantor shall terminate and be of no further force or
effect and such Guarantor shall be deemed to be released from all obligations
under this Article 11 upon:
(i) the
sale,
disposition or other transfer (including through merger or consolidation) of
the
Capital Stock (including any sale, disposition or other transfer following
which
the applicable Guarantor is no longer a Restricted Subsidiary) of the applicable
Guarantor if such sale, disposition or other transfer is made in compliance
with
this Indenture,
(ii) the
Company designating such Guarantor to be an Unrestricted Subsidiary in
accordance with the provisions set forth under Section 4.04 and the definition
of “Unrestricted Subsidiary,”
(iii) in
the
case of any Restricted Subsidiary which after the Issue Date is required to
guarantee the Securities pursuant to Section 4.11, the release or discharge
of
the guarantee by such Restricted Subsidiary of Indebtedness of the Company
or
any Restricted Subsidiary of the Company or such Restricted Subsidiary or the
repayment of
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the
Indebtedness or Disqualified Stock, in each case, which resulted in the
obligation to guarantee the Securities, and
(iv) the
Company’s exercise of its defeasance options under Article 8, or if the
Company’s obligations under this Indenture are discharged in accordance with the
terms of this Indenture.
In
the
case of clause (b)(i) above, such Guarantor shall be released from its
guarantees, if any, of, and all pledges and security, if any, granted in
connection with, the Credit Agreement and any other Indebtedness of the Company
or any Restricted Subsidiary of the Company.
A
Guarantee also shall be automatically released upon the applicable Subsidiary
ceasing to be a Subsidiary as a result of any foreclosure of any pledge or
security interest securing Bank Indebtedness or other exercise of remedies
in
respect thereof or if such Subsidiary is released from its guarantees of, and
all pledges and security interests granted in connection with, the Credit
Agreement and any other Indebtedness of the Company or any Restricted Subsidiary
of the Company which results in the obligation to guarantee the
Securities.
SECTION
11.03. Successors
and Assigns
.
This
Article 11 shall be binding upon each Guarantor and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee
and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party
in
this Indenture and in the Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of
this
Indenture.
SECTION
11.04. No
Waiver
.
Neither
a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article 11 shall operate
as
a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies
and benefits of the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article 11 at law, in equity, by statute or
otherwise.
SECTION
11.05. Modification
.
No
modification, amendment or waiver of any provision of this Article 11, nor
the
consent to any departure by any Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and
then such waiver or consent shall be effective only in the specific instance
and
for the purpose for which given. No notice to or demand on any Guarantor in
any
case shall entitle such Guarantor to any other or further notice or demand
in
the same, similar or other circumstances.
SECTION
11.06. Execution
of Supplemental Indenture for Future Guarantors
.
Each
Subsidiary and other Person which is required to become a Guarantor pursuant
to
Section 4.11 shall promptly execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit D hereto pursuant to which such Subsidiary
or
other Person shall become a Guarantor under this Article 11 and shall guarantee
the Guaranteed Obligations. Concurrently with the execution and delivery of
such
supplemental indenture, the Company shall deliver to the Trustee
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an
Opinion of Counsel and an Officers’ Certificate to the effect that such
supplemental indenture has been duly authorized, executed and delivered by
such
Subsidiary or other Person and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar
laws
relating to creditors’ rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, the Guarantee of such Guarantor
is a valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms and/or to such other matters as the
Trustee may reasonably request.
SECTION
11.07. Non-Impairment
.
The
failure to endorse a Guarantee on any Security shall not affect or impair the
validity thereof.
ARTICLE
12
SUBORDINATION
OF THE GUARANTEES
SECTION
12.01. Agreement
to Subordinate
.
Each
Guarantor agrees, and each Holder by accepting a Security agrees, that the
obligations of a Guarantor hereunder are subordinated in right of payment,
to
the extent and in the manner provided in this Article 12, to the prior payment
in full of all existing and future Senior Indebtedness of such Guarantor and
that the subordination is for the benefit of and enforceable by the holders
of
such Senior Indebtedness of such Guarantor. The obligations hereunder with
respect to a Guarantor shall in all respects rank pari passu in right of payment
with all existing and future Pari Passu Indebtedness of such Guarantor and
shall
rank senior in right of payment to all existing and future Subordinated
Indebtedness of such Guarantor; and only Indebtedness of such Guarantor that
is
Senior Indebtedness of such Guarantor shall rank senior to the obligations
of
such Guarantor in accordance with the provisions set forth herein. For purposes
of this Article 12, the Indebtedness evidenced by the Securities shall be deemed
to include any Additional Interest payable pursuant to the provisions set forth
in the Securities and the Registration Agreement. All provisions of this Article
12 shall be subject to Section 12.16.
SECTION
12.02. Liquidation,
Dissolution, Bankruptcy
.
Upon
any payment or distribution of the assets of a Guarantor to creditors upon
a
total or partial liquidation or a total or partial dissolution of such Guarantor
or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to such Guarantor and its properties:
(a) holders
of Senior Indebtedness of such Guarantor shall be entitled to receive payment
in
full in cash of such Senior Indebtedness (including interest accruing after,
or
which would accrue but for, the commencement of any such proceeding at the
rate
specified in the applicable Senior Indebtedness, whether or not a claim for
such
interest would be allowed) before the Holders shall be entitled to receive
any
payment pursuant to any Guaranteed Obligations from such Guarantor;
and
(b) until
the
Senior Indebtedness of such Guarantor is paid in full in cash, any payment
or
distribution to which the Holders would be entitled but for this Article 12
shall be made to holders of such Senior Indebtedness as their interests may
appear, except that the Holders may receive and retain Permitted Junior
Securities.
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SECTION
12.03. Default
on Designated Senior Indebtedness of a Guarantor
.
A
Guarantor may not make any payment pursuant to any of the Guaranteed Obligations
or otherwise purchase, redeem or otherwise retire any Securities (except that
the Holders may receive and retain (a) Permitted Junior Securities and (b)
payments made from the trust described under Article 8 (collectively, “pay its
Guarantee”) if:
(1) a
default
in the payment of the principal of, premium, if any, or interest on any
Designated Senior Indebtedness of such Guarantor occurs and is continuing or
any
other amount owing in respect of any Designated Senior Indebtedness of such
Guarantor is not paid when due, or
(2) any
other
default on Designated Senior Indebtedness of such Guarantor occurs and the
maturity of such Designated Senior Indebtedness of such Guarantor is accelerated
in accordance with its terms,
unless,
in either case, the default has been cured or waived and any such acceleration
has been rescinded or such Designated Senior Indebtedness has been paid in
full
in cash; provided,
however,
such
Guarantor may pay its Guarantee without regard to the foregoing if such
Guarantor and the Trustee receive written notice approving such payment from
the
Representative of the holders of such Designated Senior Indebtedness with
respect to which either of the events set forth in clause (1) or (2) of this
sentence has occurred and is continuing. During the continuance of any default
(other than a default described in clause (1) or (2) of the preceding sentence)
with respect to any Designated Senior Indebtedness of a Guarantor pursuant
to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, such Guarantor may not pay its
Guarantee for a period (a “Guarantee Payment Blockage Period”) commencing upon
the receipt by the Trustee (with a copy to such Guarantor and the Company)
of
written notice (a “Guarantee Blockage Notice”) of such default from the
Representative of the holders of such Designated Senior Indebtedness specifying
an election to effect a Guarantee Payment Blockage Period and ending 179 days
thereafter (or earlier if such Guarantee Payment Blockage Period is terminated
(i) by written notice to the Trustee, such Guarantor and the Company from the
Person or Persons who gave such Guarantee Blockage Notice; (ii) by repayment
in
full in cash of such Designated Senior Indebtedness; or (iii) because the
default giving rise to such Guarantee Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section
12.03 and in Section 12.02(b)), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness or a payment default exists,
such Guarantor may resume payments on its Guarantee after the end of such
Guarantee Payment Blockage Period (including any missed payments). Not more
than
one Guarantee Blockage Notice may be given with respect to a Guarantor in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness during such period. In no event, however,
may
the total number of days during which any Guarantee Payment Blockage Period
is
in effect exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section 12.03, no default or event of default
that
existed or was continuing on the date of the commencement of any Guarantee
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Guarantee Payment
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Blockage
Period shall be, or be made, the basis of the commencement of a subsequent
Guarantee Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for
a
period of not less than 90 consecutive days (it being understood that any
subsequent action or any breach of any financial covenants for a period
commencing after the date of commencement of such Guarantee Payment Blockage
Period that, in either case, would give rise to an event of default pursuant
to
any provision of the Designated Senior Indebtedness under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
SECTION
12.04. Demand
for Payment
.
If
payment of the Securities is accelerated because of an Event of Default and
a
demand for payment is made on a Guarantor pursuant to Article 11, the Company,
the Guarantor or the Trustee (provided
that the
Trustee shall have received written notice from the Company or such Guarantor,
on which notice the Trustee shall be entitled to conclusively rely) shall
promptly notify the holders of the Designated Senior Indebtedness of such
Guarantor (or the Representative of such holders) of such demand.
SECTION
12.05. When
Distribution Must Be Paid Over
.
If a
payment or distribution is made to the Holders that because of this Article
12
should not have been made to them, the Holders who receive the payment or
distribution shall hold such payment or distribution in trust for holders of
the
Senior Indebtedness of the relevant Guarantor and pay it over to them as their
respective interests may appear.
SECTION
12.06. Subrogation
.
After
all Senior Indebtedness of a Guarantor is paid in full and until the Securities
are paid in full in cash, the Holders shall be subrogated to the rights of
holders of Senior Indebtedness of such Guarantor to receive distributions
applicable to Senior Indebtedness of such Guarantor. A distribution made under
this Article 12 to holders of Senior Indebtedness of such Guarantor which
otherwise would have been made to the Holders is not, as between such Guarantor
and the Holders, a payment by such Guarantor on Senior Indebtedness of such
Guarantor.
SECTION
12.07. Relative
Rights
.
This
Article 12 defines the relative rights of the Holders and holders of Senior
Indebtedness of a Guarantor. Nothing in this Indenture shall:
(a) impair,
as between a Guarantor and the Holders, the obligation of a Guarantor which
is
absolute and unconditional, to make payments with respect to the Guaranteed
Obligations to the extent set forth in Article 11; or
(b) prevent
the Trustee or any Holder from exercising its available remedies upon a default
by a Guarantor under its obligations with respect to the Guaranteed Obligations,
subject to the rights of holders of Senior Indebtedness of such Guarantor to
receive distributions otherwise payable to the Holders.
SECTION
12.08. Subordination
May Not Be Impaired by a Guarantor
.
No
right of any holder of Senior Indebtedness of a Guarantor to enforce the
subordination of the obligations of such Guarantor hereunder shall be impaired
by any act or failure to act by such Guarantor or by its failure to comply
with
this Indenture.
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SECTION
12.09. Rights
of
Trustee and Paying Agent
.
Notwithstanding Section 12.03, the Trustee or any Paying Agent may continue
to
make payments on the Securities and shall not be charged with knowledge of
the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that payments
may not be made under this Article 12. A Guarantor, the Registrar or
co-registrar, a Paying Agent, a Representative or a holder of Senior
Indebtedness of a Guarantor may give the notice; provided,
however,
that if
an issue of Senior Indebtedness of a Guarantor has a Representative, only the
Representative may give the notice.
The
Trustee in its individual or any other capacity may hold Senior Indebtedness
of
a Guarantor with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and any Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 12 with respect to any Senior Indebtedness of a Guarantor which may
at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness of such Guarantor; and nothing in Article 7 shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 12 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07 or any other Section of this Indenture.
SECTION
12.10. Distribution
or Notice to Representative
.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of a Guarantor, the distribution may be made and the notice given
to their Representative (if any).
SECTION
12.11. Article
12 Not to Prevent Events of Default or Limit Right to Accelerate
.
The
failure of a Guarantor to make a payment on any of its obligations by reason
of
any provision in this Article 12 shall not be construed as preventing the
occurrence of a default by such Guarantor under such obligations. Nothing in
this Article 12 shall have any effect on the right of the Holders or the Trustee
to make a demand for payment on a Guarantor pursuant to Article 11.
SECTION
12.12. Trustee
Entitled to Rely
.
Upon
any payment or distribution pursuant to this Article 12, the Trustee and the
Holders shall be entitled to rely (a) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (b) upon a certificate of the liquidating trustee
or
agent or other Person making such payment or distribution to the Trustee or
to
the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of a Guarantor for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of a Guarantor and other Indebtedness of a Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect
to
the right of any Person as a holder of Senior Indebtedness of a Guarantor to
participate in any payment or distribution pursuant to this Article 12, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness of such
Guarantor held by such Person, the extent to which such Person is entitled
to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such
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Person
to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
SECTION
12.13. Trustee
to Effectuate Subordination
.
Each
Holder by accepting a Security authorizes and directs the Trustee on his or
her
behalf to take such action as may be necessary or appropriate to acknowledge
or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of each of the Guarantors as provided in this Article 12 and
appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION
12.14. Trustee
Not Fiduciary for Holders of Senior Indebtedness of a Guarantor
.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of a Guarantor and shall not be liable to any such holders if
it
shall mistakenly pay over or distribute to the Holders or the relevant Guarantor
or any other Person, money or assets to which any holders of Senior Indebtedness
of such Guarantor shall be entitled by virtue of this Article 12 or
otherwise.
SECTION
12.15. Reliance
by Holders of Senior Indebtedness of a Guarantor on Subordination
Provisions
.
Each
Holder by accepting a Security acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a
consideration to each holder of any Senior Indebtedness of a Guarantor, whether
such Senior Indebtedness was created or acquired before or after the issuance
of
the Securities, to acquire and continue to hold, or to continue to hold, such
Senior Indebtedness and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of a Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing
or
releasing the subordination provided in this Article 12 or the obligations
hereunder of the Holders to the holders of the Senior Indebtedness of a
Guarantor, do any one or more of the following: (i) change the manner, place
or
terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness of a Guarantor, or otherwise amend or supplement in any manner
Senior Indebtedness of a Guarantor, or any instrument evidencing the same or
any
agreement under which Senior Indebtedness of a Guarantor is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness of a Guarantor; (iii) release any
Person liable in any manner for the payment or collection of Senior Indebtedness
of a Guarantor; and (iv) exercise or refrain from exercising any rights against
such Guarantor and any other Person.
SECTION
12.16. Trust
Monies Not Subordinated
.
Notwithstanding anything contained herein to the contrary, payments from money
or the proceeds of Government Obligations held in trust under Article 8 by
the
Trustee and deposited at a time when permitted by the subordination provisions
of this Article 12 for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness of any Guarantor or subject to the restrictions set forth in this
Article 12, and none of the Holders shall be obligated to pay over any such
amount to a Guarantor or any holder of Senior Indebtedness of a Guarantor or
any
other creditor of a Guarantor.
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Article
13
MISCELLANEOUS
SECTION
13.01. Trust
Indenture Act Controls
.
If and
to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by, or with another provision (an
“incorporated provision”) included in this Indenture by operation of, Sections
310 to 318 of the TIA, inclusive, such imposed duties or incorporated provision
shall control.
SECTION
13.02. Notices
.
(17)
Any
notice or communication required or permitted hereunder shall be in writing
and
delivered in person, via facsimile or mailed by first-class mail addressed
as
follows:
if
to the
Company or a Guarantor:
Covalence
Specialty Materials Corp.
0
Xxxxxx
Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attention
of: General Counsel
Facsimile:
(000) 000-0000
if
to the
Trustee:
Well
Fargo Bank, National Association
000
Xxxxx
Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Attention
of: Corporate Trust Services
Facsimile:
(000) 000-0000
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Any
notice or communication mailed to a Holder shall be mailed, first class mail,
to
the Holder at the Holder’s address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
(c) Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it, except that notices to the Trustee are
effective only if received.
SECTION
13.03. Communication
by the Holders with Other Holders
.
The
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and other Persons shall have the protection
of Section 312(c) of the TIA.
TRDOCS01/76765.8
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SECTION
13.04. Certificate
and Opinion as to Conditions Precedent
.
Upon
any request or application by the Company to the Trustee to take or refrain
from
taking any action under this Indenture, the Company shall furnish to the Trustee
at the request of the Trustee:
(a) an
Officers’ Certificate in form reasonably satisfactory to the Trustee stating
that, in the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with;
and
(b) an
Opinion of Counsel in form reasonably satisfactory to the Trustee stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
SECTION
13.05. Statements
Required in Certificate or Opinion
.
Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a
statement that the individual making such certificate or opinion has read such
covenant or condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c) a
statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion
as
to whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with; provided,
however,
that
with respect to matters of fact an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.
SECTION
13.06. When
Securities Disregarded
.
In
determining whether the Holders of the required principal amount of Securities
have concurred in any direction, waiver or consent, Securities owned by the
Company, any Guarantor or by any Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with the Company or
any
Guarantor shall be disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION
13.07. Rules
by
Trustee, Paying Agent and Registrar
.
The
Trustee may make reasonable rules for action by or a meeting of the Holders.
The
Registrar and a Paying Agent may make reasonable rules for their
functions.
SECTION
13.08. Legal
Holidays
.
If a
payment date is not a Business Day, payment shall be made on the next succeeding
day that is a Business Day, and no interest shall
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accrue
on
any amount that would have been otherwise payable on such payment date if it
were a Business Day for the intervening period. If a regular record date is
not
a Business Day, the record date shall not be affected.
SECTION
13.09. GOVERNING LAW
.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
13.10. No
Recourse Against Others
.
No
director, officer, employee, incorporator or holder of any equity interests
in
the Company or of any Guarantor or any direct or indirect parent corporation,
as
such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities or this Indenture or for any claim based on,
in
respect of, or by reason of, such obligations or their creation. Each Holder
of
Securities by accepting a Security waives and releases all such
liability.
SECTION
13.11. Successors
.
All
agreements of the Company and each Guarantor in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION
13.12. Multiple
Originals
.
The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION
13.13. Table
of
Contents; Headings
.
The
table of contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference
only,
are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
SECTION
13.14. Indenture
Controls
.
If and
to the extent that any provision of the Securities limits, qualifies or
conflicts with a provision of this Indenture, such provision of this Indenture
shall control.
SECTION
13.15. Severability
.
In case
any provision in this Indenture shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby and such provision shall be ineffective
only to the extent of such invalidity, illegality or
unenforceability.
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IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as
of the date first written above.
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
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S-1
GUARANTORS:
COVALENCE
SPECIALTY COATINGS LLC
By:
COVALENCE SPECIALTY
MATERIALS
CORP., its sole member and
Manager
By:
________________________________
Name:
Xxxxxxx Jupiter
Title:
President and Secretary
COVALENCE
SPECIALTY ADHESIVES LLC
By:
COVALENCE SPECIALTY
MATERIALS
CORP., its sole member and
Manager
By:
________________________________
Name:
Xxxxxxx Jupiter
Title:
President and Secretary
TRDOCS01/76765.8 S-
S-2
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:
Name:
Title:
TRDOCS01/76765.8 S-
S-3
APPENDIX
A
PROVISIONS
RELATING TO INITIAL SECURITIES, ADDITIONAL SECURITIES AND EXCHANGE
SECURITIES
1. Definitions.
1.1 Definitions.
For
the
purposes of this Appendix A the following terms shall have the meanings
indicated below:
“Additional
Interest” has the meaning set forth in the Registration Agreement.
“Definitive
Security” means a certificated Initial Security or Exchange Security (bearing
the Restricted Securities Legend if the transfer of such Security is restricted
by applicable law) that does not include the Global Securities
Legend.
“Depository”
means The Depository Trust Company, its nominees and their respective
successors.
“Global
Securities Legend” means the legend set forth under that caption in the
applicable Exhibit to this Indenture.
“IAI”
means an institutional “accredited investor” as described in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
“Initial
Purchasers” means Banc of America Securities LLC, Credit Suisse Securities (USA)
LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bear, Xxxxxxx &
Co. Inc. and CIBC World Markets Corp., and such other initial purchasers party
to the Purchase Agreement entered into in connection with the offer and sale
of
the Securities.
“Purchase
Agreement” means (a) the Purchase Agreement dated February 2, 2006, among the
Company and the Initial Purchasers and (b) any other similar Purchase Agreement
relating to Additional Securities.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.
“Registered
Exchange Offer” means the offer by the Company, pursuant to the Registration
Agreement, to certain Holders of Initial Securities, to issue and deliver to
such Holders, in exchange for their Initial Securities, a like aggregate
principal amount of Exchange Securities registered under the Securities
Act.
“Registration
Agreement” means (a) the Registration Rights Agreement dated as of February 16,
2006 among the Company, the Guarantors and the Initial Purchasers relating
to
the Securities and (b) any other similar Registration Rights Agreement relating
to Additional Securities.
TRDOCS01/76765.8 --
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“Regulation
S” means Regulation S under the Securities Act.
“Regulation
S Securities” means all Initial Securities offered and sold outside the United
States in reliance on Regulation S.
“Restricted
Period,” with respect to any Securities, means the period of 40 consecutive days
beginning on and including the later of (a) the day on which such Securities
are
first offered to persons other than distributors (as defined in Regulation
S
under the Securities Act) in reliance on Regulation S, notice of which day
shall
be promptly given by the Company to the Trustee, and (b) the Issue Date, and
with respect to any Additional Securities that are Transfer Restricted
Securities, it means the comparable period of 40 consecutive days.
“Restricted
Securities Legend” means the legend set forth in Section 2.2(f)(i)
herein.
“Rule
501” means Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
“Rule
144A” means Rule 144A under the Securities Act.
“Rule
144A Securities” means all Initial Securities offered and sold to QIBs in
reliance on Rule 144A.
“Securities
Custodian” means the custodian with respect to a Global Security (as appointed
by the Depository) or any successor person thereto, who shall initially be
the
Trustee.
“Shelf
Registration Statement” means a registration statement filed by the Company in
connection with the offer and sale of Initial Securities pursuant to the
Registration Agreement.
“Transfer
Restricted Securities” means Definitive Securities and any other Securities that
bear or are required to bear or are subject to the Restricted Securities
Legend.
“Unrestricted
Definitive Security” means Definitive Securities and any other Securities that
are not required to bear, or are not subject to, the Restricted Securities
Legend.
1.2 Other
Definitions.
|
Term:
|
Defined
in Section:
|
|
“Agent
Members”
|
2.1(b)
|
|
“Global
Securities”
|
2.1(b)
|
|
“Regulation
S Global Securities”
|
2.1(b)
|
|
“Rule
144A Global Securities”
|
2.1(b)
|
|
Regulation
S Permanent Global Security
|
2.1(b)
|
|
Regulation
S Temporary Global Security
|
2.1(b)
|
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. The
Securities.
2.1 Form
and Dating; Global Securities.
(a) The
Initial Securities issued on the date hereof will be (i) offered and sold by
the
Company pursuant to the Purchase Agreement and (ii) resold, initially only
to
(1) QIBs in reliance on Rule 144A and (2) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S. Such Initial Securities
may thereafter be transferred to, among others, QIBs, purchasers in reliance
on
Regulation S and, except as set forth below, IAIs in accordance with Rule 501.
Additional Securities offered after the date hereof may be offered and sold
by
the Company from time to time pursuant to one or more Purchase Agreements in
accordance with applicable law.
(b) Global
Securities.
(i)
Rule 144A Securities initially shall be represented by one or more Securities
in
definitive, fully registered, global form without interest coupons
(collectively, the “Rule 144A Global Securities”).
Regulation
S Securities initially shall be represented by one or more Securities in fully
registered, global form without interest coupons (collectively, the “Regulation
S Temporary Global Security” and, together with the Regulation S Permanent
Global Security (defined below), the “Regulation S Global Securities”), which
shall be registered in the name of the Depository or the nominee of the
Depository for the accounts of designated agents holding on behalf of Euroclear
or Clearstream.
The
Restricted Period shall be terminated upon the receipt by the Trustee of: (1)
a
written certificate from the Depository, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent
of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who shall take delivery of a beneficial ownership interest
in
a 144A Global Security bearing a Private Placement Legend, all as contemplated
by this Appendix A); and (2) an Officers’ Certificate from the
Company.
Following
the termination of the Restricted Period, beneficial interests in the Regulation
S Temporary Global Security shall be exchanged for beneficial interests in
a
permanent Global Security (the “Regulation S Permanent Global Security”)
pursuant to the applicable procedures of the Depository. Simultaneously with
the
authentication of the Regulation S Permanent Global Security, the Trustee shall
cancel the Regulation S Temporary Global Security. The aggregate principal
amount of the Regulation S Temporary Global Security and the Regulation S
Permanent Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depository or its
nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream Banking” and “Customer Handbook” of Clearstream shall be applicable
to transfers
TRDOCS01/76765.8 --
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of
beneficial interests in the Regulation S Temporary Global Security and the
Regulation S Permanent Global Security that are held by Participants through
Euroclear or Clearstream.
The
term
“Global Securities” means the Rule 144A Global Securities and the Regulation S
Global Securities. The Global Securities shall bear the Global Security Legend.
The Global Securities initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, in each case for credit to an
account of an Agent Member, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear the Restricted Securities Legend.
Members
of, or direct or indirect participants in, the Depository shall have no rights
under this Indenture with respect to any Global Security held on their behalf
by
the Depository, or the Trustee as its custodian, or under the Global Securities.
The Depository may be treated by the Company, the Trustee and any agent of
the
Company or the Trustee as the absolute owner of the Global Securities for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by
the Depository, or impair, as between the Depository and its Agent Members,
the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
(ii) Transfers
of Global Securities shall be limited to transfer in whole, but not in part,
to
the Depository, its successors or their respective nominees. Interests of
beneficial owners in the Global Securities may be transferred or exchanged
for
Definitive Securities only in accordance with the applicable rules and
procedures of the Depository and the provisions of Section 2.2. In addition,
a
Global Security shall be exchangeable for Definitive Securities if (x) the
Depository (1) notifies the Company that it is unwilling or unable to continue
as depository for such Global Security and the Company thereupon fails to
appoint a successor depository or (2) has ceased to be a clearing agency
registered under the Exchange Act or (y) there shall have occurred and be
continuing an Event of Default with respect to such Global Security;
provided
that
in
no event shall the Regulation S Temporary Global Security be exchanged by the
Company for Definitive Securities prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. In all cases,
Definitive Securities delivered in exchange for any Global Security or
beneficial interests therein shall be registered in the names, and issued in
any
approved denominations, requested by or on behalf of the Depository in
accordance with its customary procedures.
(iii) In
connection with the transfer of a Global Security as an entirety to beneficial
owners pursuant to subsection (i) of this Section 2.1(b), such Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and make available
for
delivery, to each beneficial owner identified by the Depository in writing
in
exchange for its beneficial interest in such Global Security, an equal aggregate
principal amount of Definitive Securities of authorized
denominations.
TRDOCS01/76765.8 --
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(iv) Any
Transfer Restricted Security delivered in exchange for an interest in a Global
Security pursuant to Section 2.2 shall, except as otherwise provided in Section
2.2, bear the Restricted Securities Legend.
(v) Notwithstanding
the foregoing, through the Restricted Period, a beneficial interest in such
Regulation S Global Security may be held only through Euroclear or Clearstream
unless delivery is made in accordance with the applicable provisions of Section
2.2.
(vi) The
Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under
this
Indenture or the Securities.
2.2 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Securities.
A
Global Security may not be transferred as a whole except as set forth in Section
2.1(b). Global Securities will not be exchanged by the Company for Definitive
Securities except under the circumstances described in Section in Section
2.1(b)(ii). Global Securities also may be exchanged or replaced, in whole or
in
part, as provided in Sections 2.08 and 2.10 of this Indenture. Beneficial
interests in a Global Security may be transferred and exchanged as provided
in
Section 2.2(b) or 2.2(g).
(b) Transfer
and Exchange of Beneficial Interests in Global Securities.
The
transfer and exchange of beneficial interests in the Global Securities shall
be
effected through the Depository, in accordance with the provisions of this
Indenture and the applicable rules and procedures of the Depository. Beneficial
interests in Restricted Global Securities shall be subject to restrictions
on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Beneficial interests in Global Securities shall be transferred
or exchanged only for beneficial interests in Global Securities. Transfers
and
exchanges of beneficial interests in the Global Securities also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well
as
one or more of the other following subparagraphs, as applicable:
(i) Transfer
of Beneficial Interests in the Same Global Security.
Beneficial interests in any Restricted Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Security in accordance with the transfer restrictions
set
forth in the Restricted Securities Legend; provided,
however,
that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in a Regulation S Global Security may not be made to a U.S. Person
or
for the account or benefit of a U.S. Person (other than an Initial Purchaser).
A
beneficial interest in an Unrestricted Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in
this Section 2.2(b)(i).
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global
Securities.
In
connection with all transfers and exchanges of beneficial interests in any
Global Security that is not subject to Section 2.2(b)(i), the transferor of
such
beneficial
TRDOCS01/76765.8 --
-5-
interest
must deliver to the Registrar (1) a written order from an Agent Member given
to
the Depository in accordance with the applicable rules and procedures of the
Depository directing the Depository to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
in
accordance with the applicable rules and procedures of the Depository containing
information regarding the Agent Member account to be credited with such
increase. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Securities contained in this Indenture and
the
Securities or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Security pursuant to Section
2.2(g).
(iii) Transfer
of Beneficial Interests to Another Restricted Global Security.
A
beneficial interest in a Transfer Restricted Global Security may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
another Transfer Restricted Global Security if the transfer complies with the
requirements of Section 2.2(b)(ii) above and the Registrar receives the
following:
(A) if
the
transferee will take delivery in the form of a beneficial interest in a Rule
144A Global Security, then the transferor must deliver a certificate in the
form
attached to the applicable Security; and
(B) if
the
transferee will take delivery in the form of a beneficial interest in a
Regulation S Global Security, then the transferor must deliver a certificate
in
the form attached to the applicable Security.
(iv) Transfer
and Exchange of Beneficial Interests in a Transfer Restricted Global Security
for Beneficial Interests in an Unrestricted Global Security.
A
beneficial interest in a Transfer Restricted Global Security may be exchanged
by
any holder thereof for a beneficial interest in an Unrestricted Global Security
or transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security if the exchange or
transfer complies with the requirements of Section 2.2(b)(ii) above and the
Registrar receives the following:
(A) if
the
holder of such beneficial interest in a Restricted Global Security proposes
to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Security, a certificate from such holder in the form attached to the
applicable Security; or
(B) if
the
holder of such beneficial interest in a Restricted Global Security proposes
to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Security, a
certificate from such holder in the form attached to the applicable
Security,
and,
in
each such case, if the Company or the Registrar so requests or if the applicable
rules and procedures of the Depository so require, an Opinion of Counsel in
form
TRDOCS01/76765.8 --
-6-
reasonably
acceptable to the Registrar to the effect that such exchange or transfer is
in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Restricted Securities Legend are no longer required
in order to maintain compliance with the Securities Act. If any such transfer
or
exchange is effected pursuant to this subparagraph (iv) at a time when an
Unrestricted Global Security has not yet been issued, the Company shall issue
and, upon receipt of an written order of the Company in the form of an Officers’
Certificate in accordance with Section 2.01, the Trustee shall authenticate
one
or more Unrestricted Global Securities in an aggregate principal amount equal
to
the aggregate principal amount of beneficial interests transferred or exchanged
pursuant to this subparagraph (iv).
(v) Transfer
and Exchange of Beneficial Interests in an Unrestricted Global Security for
Beneficial Interests in a Restricted Global Security.
Beneficial interests in an Unrestricted Global Security cannot be exchanged
for,
or transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Security.
(c) Transfer
and Exchange of Beneficial Interests in Global Securities for Definitive
Securities.
A
beneficial interest in a Global Security may not be exchanged for a Definitive
Security except under the circumstances described in Section 2.1(b)(ii). A
beneficial interest in a Global Security may not be transferred to a Person
who
takes delivery thereof in the form of a Definitive Security except under the
circumstances described in Section 2.1(b)(ii). In any case, beneficial interests
in Global Securities shall be transferred or exchanged only for Definitive
Securities.
(d) Transfer
and Exchange of Definitive Securities for Beneficial Interests in Global
Securities.
Transfers and exchanges of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i), (ii) or (ii) below,
as
applicable:
(i) Transfer
Restricted Securities to Beneficial Interests in Restricted Global
Securities.
If any
Holder of a Transfer Restricted Security proposes to exchange such Transfer
Restricted Security for a beneficial interest in a Restricted Global Security
or
to transfer such Transfer Restricted Security to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Security,
then, upon receipt by the Registrar of the following documentation:
(A) if
the
Holder of such Transfer Restricted Security proposes to exchange such Transfer
Restricted Security for a beneficial interest in a Restricted Global Security,
a
certificate from such Holder in the form attached to the applicable
Security;
(B) if
such
Transfer Restricted Security is being transferred to a Qualified Institutional
Buyer in accordance with Rule 144A under the Securities Act, a certificate
from
such Holder in the form attached to the applicable Security;
(C) if
such
Transfer Restricted Security is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule
TRDOCS01/76765.8 --
-7-
904
under
the Securities Act, a certificate from such Holder in the form attached to
the
applicable Security;
(D) if
such
Transfer Restricted Security is being transferred pursuant to an exemption
from
the registration requirements of the Securities Act in accordance with Rule
144
under the Securities Act, a certificate from such Holder in the form attached
to
the applicable Security;
(E) if
such
Transfer Restricted Security is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of
the
Securities Act other than those listed in subparagraphs (B) through (D) above,
a
certificate from such Holder in the form attached to the applicable Security,
including the certifications, certificates and Opinion of Counsel, if
applicable; or
(F) if
such
Transfer Restricted Security is being transferred to the Company or a Subsidiary
thereof, a certificate from such Holder in the form attached to the applicable
Security;
the
Trustee shall cancel the Transfer Restricted Security, and increase or cause
to
be increased the aggregate principal amount of the appropriate Restricted Global
Security.
(ii) Transfer
Restricted Securities to Beneficial Interests in Unrestricted Global
Securities.
A
Holder of a Transfer Restricted Security may exchange such Transfer Restricted
Definitive Security for a beneficial interest in an Unrestricted Global Security
or transfer such Transfer Restricted Security to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security
only if the Registrar receives the following:
(A) if
the
Holder of such Transfer Restricted Security proposes to exchange such Transfer
Restricted Security for a beneficial interest in an Unrestricted Global
Security, a certificate from such Holder in the form attached to the applicable
Security; or
(B) if
the
Holder of such Transfer Restricted Securities proposes to transfer such Transfer
Restricted Security to a Person who shall take delivery thereof in the form
of a
beneficial interest in an Unrestricted Global Security, a certificate from
such
Holder in the form attached to the applicable Security,
and,
in
each such case, if the Company or the Registrar so requests or if the applicable
rules and procedures of the Depository so require, an Opinion of Counsel in
form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Restricted Securities Legend are no longer
required in order to maintain compliance with the Securities Act. Upon
satisfaction of the conditions of this subparagraph (ii), the Trustee shall
cancel the Transfer Restricted Securities and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Security. If any
such
transfer or exchange is effected pursuant to this subparagraph (ii)
at
TRDOCS01/76765.8 --
-8-
a
time
when an Unrestricted Global Security has not yet been issued, the Company shall
issue and, upon receipt of an written order of the Company in the form of an
Officers’ Certificate, the Trustee shall authenticate one or more Unrestricted
Global Securities in an aggregate principal amount equal to the aggregate
principal amount of Transfer Restricted Securities transferred or exchanged
pursuant to this subparagraph (ii).
(iii) Unrestricted
Definitive Securities to Beneficial Interests in Unrestricted Global
Securities.
A
Holder of an Unrestricted Definitive Security may exchange such Unrestricted
Definitive Security for a beneficial interest in an Unrestricted Global Security
or transfer such Unrestricted Definitive Security to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Security
at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Security and
increase or cause to be increased the aggregate principal amount of one of
the
Unrestricted Global Securities. If any such transfer or exchange is effected
pursuant to this subparagraph (iii) at a time when an Unrestricted Global
Security has not yet been issued, the Company shall issue and, upon receipt
of
an written order of the Company in the form of an Officers’ Certificate, the
Trustee shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
Unrestricted Definitive Securities transferred or exchanged pursuant to this
subparagraph (iii).
(iv) Unrestricted
Definitive Securities to Beneficial Interests in Restricted Global
Securities.
An
Unrestricted Definitive Security cannot be exchanged for, or transferred to
a
Person who takes delivery thereof in the form of, a beneficial interest in
a
Restricted Global Security.
(e) Transfer
and Exchange of Definitive Securities for Definitive Securities.
Upon
request by a Holder of Definitive Securities and such Holder’s compliance with
the provisions of this Section 2.2(e), the Registrar shall register the transfer
or exchange of Definitive Securities. Prior to such registration of transfer
or
exchange, the requesting Holder shall present or surrender to the Registrar
the
Definitive Securities duly endorsed or accompanied by a written instruction
of
transfer in form satisfactory to the Registrar duly executed by such Holder
or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.2(e).
(i) Transfer
Restricted Securities to Transfer Restricted Securities.
A
Transfer Restricted Security may be transferred to and registered in the name
of
a Person who takes delivery thereof in the form of a Transfer Restricted
Security if the Registrar receives the following:
(A) if
the
transfer will be made pursuant to Rule 144A under the Securities Act, then
the
transferor must deliver a certificate in the form attached to the applicable
Security;
TRDOCS01/76765.8 --
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(B) if
the
transfer will be made pursuant to Rule 903 or Rule 904 under the Securities
Act,
then the transferor must deliver a certificate in the form attached to the
applicable Security;
(C) if
the
transfer will be made pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate in the form attached to the applicable
Security;
(D) if
the
transfer will be made to an IAI in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (A) through (D) above, a certificate in the form attached to
the
applicable Security; and
(E) if
such
transfer will be made to the Company or a Subsidiary thereof, a certificate
in
the form attached to the applicable Security.
(ii) Transfer
Restricted Securities to Unrestricted Definitive Securities.
Any
Transfer Restricted Security may be exchanged by the Holder thereof for an
Unrestricted Definitive Security or transferred to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Security if the Registrar
receives the following:
(1) if
the
Holder of such Transfer Restricted Security proposes to exchange such Transfer
Restricted Security for an Unrestricted Definitive Security, a certificate
from
such Holder in the form attached to the applicable Security; or
(2) if
the
Holder of such Transfer Restricted Security proposes to transfer such Securities
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Security, a certificate from such Holder in the form attached to
the
applicable Security,
and,
in
each such case, if the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Restricted Securities Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted
Definitive Securities to Unrestricted Definitive Securities.
A
Holder of an Unrestricted Definitive Security may transfer such Unrestricted
Definitive Securities to a Person who takes delivery thereof in the form of
an
Unrestricted Definitive Security at any time. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Securities pursuant to the instructions from the Holder
thereof.
(iv) Unrestricted
Definitive Securities to Transfer Restricted Securities.
An
Unrestricted Definitive Security cannot be exchanged for, or transferred to
a
Person who takes delivery thereof in the form of, a Transfer Restricted
Security.
TRDOCS01/76765.8 --
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At
such
time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for or transferred to
a
Person who will take delivery thereof in the form of a beneficial interest
in
another Global Security or for Definitive Securities, the principal amount
of
Securities represented by such Global Security shall be reduced accordingly
and
an endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such reduction; and if
the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such
increase.
(f) Legend.
(i) Except
as
permitted by the following paragraph (ii), (iii) or (iv), each Security
certificate evidencing the Global Securities and the Definitive Securities
(and
all Securities issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form (each defined term in the
legend being defined as such for purposes of the legend only):
“THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS [IN
THE CASE OF RULE 144A NOTES:
TWO
YEARS] [IN
THE CASE OF REGULATION S NOTES:
40
DAYS] AFTER
THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT
OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRDOCS01/76765.8 --
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TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE
THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF
COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE.
NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY
RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”
Each
Definitive Security shall bear the following additional legend:
“IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.”
(ii) Upon
any
sale or transfer of a Transfer Restricted Security that is a Definitive
Security, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security that does not bear the
legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Security if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Initial
Security).
(iii) After
a
transfer of any Initial Securities during the period of the effectiveness of
a
Shelf Registration Statement with respect to such Initial Securities, all
requirements pertaining to the Restricted Securities Legend on such Initial
Securities shall cease to apply and the requirements that any such Initial
Securities be issued in global form shall continue to apply.
(iv) Upon
the
consummation of a Registered Exchange Offer with respect to the Initial
Securities pursuant to which Holders of such Initial Securities are offered
Exchange Securities in exchange for their Initial Securities, all requirements
pertaining to Initial Securities
TRDOCS01/76765.8 --
-12-
that
Initial Securities be issued in global form shall continue to apply, and
Exchange Securities in global form without the Restricted Securities Legend
shall be available to Holders that exchange such Initial Securities in such
Registered Exchange Offer.
(v) Upon
a
sale or transfer after the expiration of the Restricted Period of any Initial
Security acquired pursuant to Regulation S, all requirements that such Initial
Security bear the Restricted Securities Legend shall cease to apply and the
requirements requiring any such Initial Security be issued in global form shall
continue to apply.
(vi) Any
Additional Securities sold in a registered offering shall not be required to
bear the Restricted Securities Legend.
(g) Cancellation
or Adjustment of Global Security.
At such
time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.11 of this Indenture. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged
for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for Definitive Securities,
the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security
by
the Trustee or by the Depository at the direction of the Trustee to reflect
such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Security, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security by the
Trustee or by the Depository at the direction of the Trustee to reflect such
increase.
(h) Obligations
with Respect to Transfers and Exchanges of Securities.
(i) To
permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate, Definitive Securities and Global Securities at
the
Registrar’s request.
(ii) No
service charge shall be made for any registration of transfer or exchange,
but
the Company may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments or similar governmental charge
payable upon exchanges pursuant to Sections 3.06, 4.06, 4.08 and 9.05 of this
Indenture).
(iii) Prior
to
the due presentation for registration of transfer of any Security, the Company,
the Trustee, a Paying Agent or the Registrar may deem and treat the person
in
whose name a Security is registered as the absolute owner of such Security
for
the purpose of receiving payment of principal of and interest on such Security
and for all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent or the Registrar shall
be
affected by notice to the contrary.
TRDOCS01/76765.8 --
-13-
(iv) All
Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
(i) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner
of a
Global Security, a member of, or a participant in the Depository or any other
Person with respect to the accuracy of the records of the Depository or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any
notice (including any notice of redemption or repurchase) or the payment of
any
amount, under or with respect to such Securities. All notices and communications
to be given to the Holders and all payments to be made to the Holders under
the
Securities shall be given or made only to the registered Holders (which shall
be
the Depository or its nominee in the case of a Global Security). The rights
of
beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository.
The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depository participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the
terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
TRDOCS01/76765.8
-14-
EXHIBIT A
[FORM
OF
FACE OF INITIAL SECURITY]
[Global
Securities Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO
ON THE REVERSE HEREOF.
[Restricted
Securities Legend]
THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS [IN
THE CASE OF RULE 144A NOTES:
TWO
YEARS] [IN
THE CASE OF REGULATION S NOTES:
40
DAYS] AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (1)(a) INSIDE THE UNITED STATES
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
TRDOCS01/76765.8 A-
A-1
INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION
S
UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO,
NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.”
Each
Definitive Security shall bear the following additional legend:
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT
MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
TRDOCS01/76765.8 A-
A-2
[FORM
OF
INITIAL SECURITY]
No.$__________
10¼%
Senior Subordinated Note due 2016
CUSIP
No.
ISIN
No.
COVALENCE
SPECIALTY MATERIALS CORP., a Delaware corporation, promises to pay to [ ],
or
registered assigns, the principal sum [of Dollars] [listed on the Schedule
of
Increases or Decreases in Global Security attached hereto]1
on March
1, 2016.
Interest
Payment Dates: March 1 and September 1.
Record
Dates: February 15 and August 15.
Additional
provisions of this Security are set forth on the other side of this
Security.
IN
WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
Dated:
TRDOCS01/76765.8 A-
A-3
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee, certifies that this is
one
of
the Securities
referred
to in the Indenture.
By:
Authorized
Signatory
*/ If
the
Security is to be issued in global form, add the Global Securities Legend and
the attachment from Exhibit A captioned “TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY”.
TRDOCS01/76765.8 A-
A-4
[FORM
OF
REVERSE SIDE OF INITIAL SECURITY]
10¼%
Senior Subordinated Note due 2016
|
1.
|
Interest
|
(a) COVALENCE
SPECIALTY MATERIALS CORP., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the “Company”), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company shall pay interest
semiannually on March 1 and September 1 of each year, commencing September
1,
2006. Interest on the Securities shall accrue from the most recent date to
which
interest has been paid or duly provided for or, if no interest has been paid
or
duly provided for, from February 16, 2006 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne
by
the Securities, and it shall pay interest on overdue installments of interest
at
the same rate to the extent lawful.
(b) Registration
Rights Agreement.
The
Holder of this Security is entitled to the benefits of a Registration Rights
Agreement, dated as of February 16, 2006, among the Company, the Guarantors
and
the Initial Purchasers.
|
2.
|
Method
of Payment
|
The
Company shall pay interest on the Securities (except defaulted interest) to
the
Persons who are registered Holders at the close of business on the February
15
or August 15 next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment date
(whether or not a Business Day). Holders must surrender Securities to the Paying
Agent to collect principal payments. The Company shall pay principal, premium,
if any, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. Payments
in
respect of the Securities represented by a Global Security (including principal,
premium, if any, and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company or
any
successor depositary. The Company shall make all payments in respect of a
certificated Security (including principal, premium, if any, and interest)
at
the office of the Paying Agent, except that, at the option of the Company,
payment of interest may be made by mailing a check to the registered address
of
each Holder thereof; provided,
however,
that
payments on the Securities may also be made, in the case of a Holder of at
least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a
U.S.
dollar account maintained by the payee with a bank in the United States if
such
Holder elects payment by wire transfer by giving written notice to the Trustee
or Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date
as
the Trustee may accept in its discretion).
|
3.
|
Paying
Agent and Registrar
|
Initially,
Xxxxx Fargo Bank, National Association, a national banking association (the
“Trustee”), will act as Paying Agent and Registrar. The Company may appoint and
change
TRDOCS01/76765.8 X-
X-0
any
Paying Agent or Registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
|
4.
|
Indenture
|
The
Company issued the Securities under an Indenture dated as of February 16, 2006
(the “Indenture”), among the Company, the Guarantors and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part
of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and the Holders (as defined in the Indenture) are referred
to
the Indenture and the TIA for a statement of such terms and
provisions
The
Securities are senior subordinated unsecured obligations of the Company. This
Security is one of the Initial Securities referred to in the Indenture. The
Securities include the Initial Securities, any Additional Securities and any
Exchange Securities issued in exchange for the Initial Securities or any
Additional Securities pursuant to the Indenture. The Initial Securities, any
Additional Securities and any Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations
on
the ability of the Company and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of the Company and such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make Asset Sales. The Indenture also
imposes limitations on the ability of the Company and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of its property.
To
guarantee the due and punctual payment of the principal and interest on the
Securities and all other amounts payable by the Company under the Indenture
and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Securities
and the Indenture, the Guarantors have, jointly and severally, unconditionally
guaranteed the Guaranteed Obligations on a senior subordinated basis pursuant
to
the terms of the Indenture.
|
5.
|
Optional
Redemption
|
Except
as
set forth in the following two paragraphs, the Securities shall not be
redeemable at the option of the Company prior to March 1, 2011. Thereafter,
the
Securities shall be redeemable at the option of the Company, in whole at any
time or in part from time to time, upon on not less than 30 nor more than 60
days’ prior notice, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued and unpaid interest, if any,
to
the redemption date (subject to the right of the Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on March 1 of the
years
set forth below:
A-6
|
Year
|
Redemption
Price
|
|
2011
|
105.125%
|
|
2012
|
103.417%
|
|
2013
|
101.708%
|
|
2014
and thereafter
|
100.000%
|
In
addition, prior to March 1, 2011, the Company may redeem the Securities at
its
option, in whole at any time or in part from time to time, upon not less than
30
nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s
registered address, at a redemption price equal to 100% of the principal amount
of the Securities redeemed plus the Applicable Premium as of, and accrued and
unpaid interest to, the applicable redemption date (subject to the right of
the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding
the foregoing, at any time and from time to time on or prior to March 1, 2009,
the Company may redeem in the aggregate up to 35% of the original aggregate
principal amount of the Securities (calculated after giving effect to any
issuance of Additional Securities), with the net cash proceeds of one or more
Equity Offerings (1) by the Company or (2) by any direct or indirect parent
of
the Company, in each case, to the extent the net cash proceeds thereof are
contributed to the common equity capital of the Company or used to purchase
Capital Stock (other than Disqualified Stock) of the Company from it, at a
redemption price equal to 110.250% of the principal amount thereof plus accrued
and unpaid interest, to the redemption date (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided,
however, that at least 65% of the original aggregate principal amount of the
Securities (calculated after giving effect to any issuance of Additional
Securities) must remain outstanding after each such redemption; and provided,
further,
that
such redemption shall occur within 90 days after the date on which any such
Equity Offering is consummated upon not less than 30 nor more than 60 days’
notice mailed to each Holder of Securities being redeemed and otherwise in
accordance with the procedures set forth in the Indenture. Notice of any
redemption upon any Equity Offering may be given prior to the completion
thereof, and any such redemption or notice may, at the Company’s discretion, be
subject to one or more conditions precedent, including, but not limited to,
completion of the related Equity Offering.
|
6.
|
Sinking
Fund
|
The
Securities are not subject to any sinking fund.
|
7.
|
Notice
of Redemption
|
Notice
of
redemption will be mailed by first-class mail at least 30 days but not more
than
60 days before the redemption date to each Holder of Securities to be redeemed
at his, her or its registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest on
all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with a Paying Agent on or before the redemption date and
certain
TRDOCS01/76765.8 X-
X-0
other
conditions are satisfied, on and after such date, interest ceases to accrue
on
such Securities (or such portions thereof) called for redemption.
|
8.
|
Repurchase
of Securities at the Option of the
|
Holders
upon Change of Control and Asset Sales
Upon
the
occurrence of a Change of Control, each Holder shall have the right, subject
to
certain conditions specified in the Indenture, to cause the Company to
repurchase all or any part of such Holder’s Securities at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), as provided in, and subject to the terms of, the
Indenture.
In
accordance with Section 4.06 of the Indenture, the Company will be required
to
offer to purchase Securities upon the occurrence of certain events.
|
9.
|
Subordination
|
The
Securities and Guarantees are subordinated to Senior Indebtedness, as defined
in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must
be paid before the Securities and Guarantees may be paid. The Company and each
Guarantor agrees, and each Holder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
|
10.
|
Denominations;
Transfer; Exchange
|
The
Securities are in registered form, without coupons, in denominations of $1,000
and whole multiples of $1,000. A Holder shall register the transfer of or
exchange of Securities in accordance with the Indenture. Upon any registration
of transfer or exchange, the Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or to transfer or exchange any
Securities for a period of 15 days prior to a selection of Securities to be
redeemed.
|
11.
|
Persons
Deemed Owners
|
The
registered Holder of this Security shall be treated as the owner of it for
all
purposes.
|
12.
|
Unclaimed
Money
|
If
money
for the payment of principal or interest remains unclaimed for two years, the
Trustee and a Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another Person.
After any such payment, the
TRDOCS01/76765.8 A-
A-8
Holders
entitled to the money must look to the Company for payment as general creditors
and the Trustee and a Paying Agent shall have no further liability with respect
to such monies.
|
13.
|
Discharge
and Defeasance
|
Subject
to certain conditions, the Company at any time may terminate some of or all
its
obligations under the Securities and the Indenture if the Company deposits
with
the Trustee money or U.S. Government Obligations for the payment of principal
and interest on the Securities to redemption or maturity, as the case may
be.
|
14.
|
Amendment;
Waiver
|
Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least
a
majority in aggregate principal amount of the outstanding Securities (voting
as
a single class) and (ii) any past default or compliance with any provisions
may
be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company
and
the Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article 5 of the
Indenture; (iii) to provide for uncertificated Securities in addition to or
in
place of certificated Securities; (iv) to add Guarantees with respect to the
Securities; (v) to add additional covenants of the Company for the benefit
of
the Holders or to surrender rights and powers conferred on the Company; (vi)
to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (vii) to make any change that
does
not adversely affect the rights of any Holder; (viii) to make any change in
the
subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company (or
any
Representative thereof) under such subordination provisions; or (ix) to provide
for the issuance of the Exchange Securities or Additional
Securities.
|
15.
|
Defaults
and Remedies
|
If
an
Event of Default occurs (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company) and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of
the outstanding Securities, in each case, by notice to the Company, may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Securities to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs, the
principal of, premium, if any, and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part
of
the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any
such
acceleration with respect to the Securities and its consequences.
If
an
Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered
to
the Trustee reasonable indemnity or
TRDOCS01/76765.8 X-
X-0
security
against any loss, liability or expense and certain other conditions are complied
with. Except to enforce the right to receive payment of principal, premium
(if
any) or interest when due, no Holder may pursue any remedy with respect to
the
Indenture or the Securities unless (i) such Holder has previously given the
Trustee notice that an Event of Default is continuing, (ii) the Holders of
at
least 25% in principal amount of the outstanding Securities have requested
the
Trustee in writing to pursue the remedy, (iii) such Holders have offered the
Trustee reasonable security or indemnity against any loss, liability or expense,
(iv) the Trustee has not complied with such request within 60 days after the
receipt of the request and the offer of security or indemnity and (v) the
Holders of a majority in principal amount of the outstanding Securities have
not
given the Trustee a direction inconsistent with such request within such 60-day
period. Subject to certain restrictions, the Holders of a majority in principal
amount of the outstanding Securities are given the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law
or
the Indenture or that the Trustee determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to
indemnification satisfactory to it in its sole discretion against all losses
and
expenses caused by taking or not taking such action.
|
16.
|
Trustee
Dealings with the Company
|
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture,
in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee.
|
17.
|
No
Recourse Against Others
|
No
director, officer, employee, incorporator or holder of any equity interests
in
the Company or of any Guarantor or any direct or indirect parent corporation,
as
such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of
Securities by accepting a Security waives and releases all such
liability.
|
18.
|
Authentication
|
This
Security shall not be valid until an authorized signatory of the Trustee (or
an
authenticating agent) manually signs the certificate of authentication on the
other side of this Security.
|
19.
|
Abbreviations
|
Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
TRDOCS01/76765.8 X-
X-00
00. Governing
Law
THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE
STATE OF NEW YORK.
|
21.
|
CUSIP
Numbers; ISINs
|
The
Company has caused CUSIP numbers and ISINs to be printed on the Securities
and
has directed the Trustee to use CUSIP numbers and ISINs in notices of redemption
as a convenience to the Holders. No representation is made as to the accuracy
of
such numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The
Company will furnish to any Holder of Securities upon written request and
without charge to the Holder a copy of the Indenture which has in it the text
of
this Security.
TRDOCS01/76765.8 A-
A-11
ASSIGNMENT
FORM
To
assign
this Security, fill in the form below:
I
or we
assign and transfer this Security to:
(Print
or
type assignee’s name, address and zip code)
(Insert
assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date:
Your
Signature:
Sign
exactly as your name appears on the other side of this Security.
Signature
Guarantee:
|
Date:
|
|
|
Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor program reasonably
acceptable to the Trustee
|
Signature
of Signature Guarantee
|
TRDOCS01/76765.8 A-
A-12
CERTIFICATE
TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION
OF TRANSFER RESTRICTED SECURITIES
This
certificate relates to $_________ principal amount of Securities held in (check
applicable space) ____ book-entry or _____ definitive form by the
undersigned.
The
undersigned (check one box below):
has
requested the Trustee by written order to deliver in exchange for its beneficial
interest in the Global Security held by the Depository a Security or Securities
in definitive, registered form of authorized denominations and an aggregate
principal amount equal to its beneficial interest in such Global Security (or
the portion thereof indicated above);
has
requested the Trustee by written order to exchange or register the transfer
of a
Security or Securities.
In
connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in
Rule
144(k) under the Securities Act, the undersigned confirms that such Securities
are being transferred in accordance with its terms:
CHECK
ONE
BOX BELOW
|
(1)
|
to
the Company; or
|
|
|
(2)
|
|
to
the Registrar for registration in the name of the Holder, without
transfer; or
|
|
(3)
|
|
pursuant
to an effective registration statement under the Securities Act of
1933;
or
|
|
(4)
|
|
inside
the United States to a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act of 1933) that purchases for its own
account
or for the account of a qualified institutional buyer to whom notice
is
given that such transfer is being made in reliance on Rule 144A,
in each
case pursuant to and in compliance with Rule 144A under the Securities
Act
of 1933; or
|
|
(5)
|
outside
the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 904
under
the Securities Act of 1933 and such Security shall be held immediately
after the transfer through Euroclear or Clearstream until the expiration
of the Restricted Period (as defined in the Indenture); or
|
|
|
(6)
|
|
to
an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933) that has furnished to
the
Trustee a signed letter containing certain representations and agreements;
or
|
A-13
|
(7)
|
|
pursuant
to another available exemption from registration provided by Rule
144
under the Securities Act of 1933.
|
Unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered Holder thereof; provided,
however,
that if
box (5), (6) or (7) is checked, the Company or the Trustee may require, prior
to
registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company or the Trustee has
reasonably requested to confirm that such transfer is being made pursuant to
an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
Date:
Your
Signature:
Signature
Guarantee:
|
Date:
|
|
|
Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor program reasonably
acceptable to the Trustee
|
Signature
of Signature Guarantee
|
TRDOCS01/76765.8 A-
A-14
TO
BE
COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The
undersigned represents and warrants that it is purchasing this Security for
its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE:
To be executed by an executive officer
TRDOCS01/76765.8 A-
A-15
[TO
BE
ATTACHED TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The
initial principal amount of this Global Security is $______________. The
following increases or decreases in this Global Security have been
made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Security
|
Amount
of increase in Principal Amount of this Global Security
|
Principal
amount of this Global Security following such decrease or
increase
|
Signature
of authorized signatory of Trustee or Securities
Custodian
|
TRDOCS01/76765.8 A-
A-16
OPTION
OF HOLDER TO ELECT PURCHASE
If
you want to elect to have this Security purchased by the Company pursuant to
Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the Indenture, check
the box:
|
Asset
Sale
|
Change
of Control
|
If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, state the amount ($1,000 or an integral multiple
thereof):
$
Date:
Your
Signature:
(Sign
exactly as your name appears on the other side of this
Security)
Signature
Guarantee:
Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor program reasonably acceptable to the
Trustee
|
1
|
Use
the Schedule of Increases and Decreases language if Security
is in Global
Form.
|
A-17
EXHIBIT
B
[FORM
OF
FACE OF EXCHANGE SECURITY]
[Global
Securities Legend]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO
ON THE REVERSE HEREOF.
TRDOCS01/76765.8 B-
B-1
No. $__________
10¼%
Senior Subordinated Note due 2016
CUSIP
No.
______
ISIN
No.
______
COVALENCE
SPECIALTY MATERIALS CORP., a Delaware corporation, promises to pay to [ ],
or
registered assigns, the principal sum [of Dollars] [listed on the Schedule
of
Increases or Decreases in Global Security attached hereto]2
on March
1, 2016.
Interest
Payment Dates: March 1 and September 1.
Record
Dates: February 15 and August 15.
Additional
provisions of this Security are set forth on the other side of this
Security.
IN
WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
Dated:
TRDOCS01/76765.8 B-
B-2
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee, certifies that this is
one
of
the Securities
referred
to in the Indenture.
By:
Authorized
Signatory
______________________
*/ If
the
Security is to be issued in global form, add the Global Securities Legend and
the attachment from Exhibit A captioned “TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY”.
TRDOCS01/76765.8 B-
B-3
[FORM
OF
REVERSE SIDE OF EXCHANGE SECURITY]
10¼%
Senior Subordinated Note due 2016
|
1.
|
Interest
|
COVALENCE
SPECIALTY MATERIALS CORP., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the “Company”), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company shall pay interest
semiannually on March 1 and September 1 of each year, commencing September
1,
2006. Interest on the Securities shall accrue from the most recent date to
which
interest has been paid or duly provided for or, if no interest has been paid
or
duly provided for, from February 16, 2006 until the principal hereof is due.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal at the rate borne
by
the Securities, and it shall pay interest on overdue installments of interest
at
the same rate to the extent lawful.
|
2.
|
Method
of Payment
|
The
Company shall pay interest on the Securities (except defaulted interest) to
the
Persons who are registered Holders at the close of business on the February
15
or August 15 next preceding the interest payment date even if Securities are
canceled after the record date and on or before the interest payment date
(whether or not a Business Day). Holders must surrender Securities to the Paying
Agent to collect principal payments. The Company shall pay principal, premium,
if any, and interest in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts. Payments
in
respect of the Securities represented by a Global Security (including principal,
premium, if any, and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by The Depository Trust Company or
any
successor depositary. The Company shall make all payments in respect of a
certificated Security (including principal, premium, if any, and interest),
at
the office of the Paying Agent, except that, at the option of the Company,
payment of interest may be made by mailing a check to the registered address
of
each Holder thereof; provided,
however,
that
payments on the Securities may also be made, in the case of a Holder of at
least
$1,000,000 aggregate principal amount of Securities, by wire transfer to a
U.S.
dollar account maintained by the payee with a bank in the United States if
such
Holder elects payment by wire transfer by giving written notice to the Trustee
or Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date
as
the Trustee may accept in its discretion).
|
3.
|
Paying
Agent and Registrar
|
Initially,
Xxxxx Fargo Bank, National Association, a national banking association (the
“Trustee”), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of
its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent
or
Registrar.
TRDOCS01/76765.8 B-
B-4
4. Indenture
The
Company issued the Securities under an Indenture dated as of February 16, 2006
(the “Indenture”), among the Company, the Guarantors and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part
of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§
77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and the Holders (as defined in the Indenture) are referred
to
the Indenture and the TIA for a statement of such terms and
provisions.
The
Securities are senior subordinated unsecured obligations of the Company. This
Security is one of the Exchange Securities referred to in the Indenture. The
Securities include the Initial Securities, any Additional Securities and any
Exchange Securities issued in exchange for the Initial Securities or any
Additional Securities pursuant to the Indenture. The Initial Securities, any
Additional Securities and any Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations
on
the ability of the Company and its Restricted Subsidiaries to, among other
things, make certain Investments and other Restricted Payments, pay dividends
and other distributions, incur Indebtedness, enter into consensual restrictions
upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, issue or sell shares of capital stock of the Company and such
Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make Asset Sales. The Indenture also
imposes limitations on the ability of the Company and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of its property.
To
guarantee the due and punctual payment of the principal and interest on the
Securities and all other amounts payable by the Company under the Indenture
and
the Securities when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Securities
and the Indenture, the Guarantors have, jointly and severally, unconditionally
guaranteed the Guaranteed Obligations on a senior subordinated basis pursuant
to
the terms of the Indenture.
|
5.
|
Optional
Redemption
|
Except
as
set forth in the following two paragraphs, the Securities shall not be
redeemable at the option of the Company prior to March 1, 2011. Thereafter,
the
Securities shall be redeemable at the option of the Company, in whole at any
time or in part from time to time, upon on not less than 30 nor more than 60
days’ prior notice, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued and unpaid interest, if any,
to
the redemption date (subject to the right of the Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on March 1 of the
years
set forth below:
|
Year
|
Redemption
Price
|
|
2011
|
105.125%
|
B-5
|
2012
|
103.417%
|
|
2013
|
101.708%
|
|
2014
and thereafter
|
100.000%
|
In
addition, prior to March 1, 2011, the Company may redeem the Securities at
its
option, in whole at any time or in part from time to time, upon not less than
30
nor more than 60 days’ prior notice mailed by first-class mail to each Holder’s
registered address, at a redemption price equal to 100% of the principal amount
of the Securities redeemed plus the Applicable Premium as of, and accrued and
unpaid interest to, the applicable redemption date (subject to the right of
the
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Notwithstanding
the foregoing, at any time and from time to time on or prior to March 1, 2009,
the Company may redeem in the aggregate up to 35% of the original aggregate
principal amount of the Securities (calculated after giving effect to any
issuance of Additional Securities), with the net cash proceeds of one or more
Equity Offerings (1) by the Company or (2) by any direct or indirect parent
of
the Company, in each case, to the extent the net cash proceeds thereof are
contributed to the common equity capital of the Company or used to purchase
Capital Stock (other than Disqualified Stock) of the Company from it, at a
redemption price equal to 110.250% of the principal amount thereof plus accrued
and unpaid interest to the redemption date (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date); provided,
however,
that at
least 65% of the original aggregate principal amount of the Securities
(calculated after giving effect to any issuance of Additional Securities) must
remain outstanding after each such redemption; and provided,
further,
that
such redemption shall occur within 90 days after the date on which any such
Equity Offering is consummated upon not less than 30 nor more than 60 days’
notice mailed to each Holder of Securities being redeemed and otherwise in
accordance with the procedures set forth in the Indenture. Notice of any
redemption upon any Equity Offering may be given prior to the completion
thereof, and any such redemption or notice may, at the Company’s discretion, be
subject to one or more conditions precedent, including, but not limited to,
completion of the related Equity Offering.
|
6.
|
Sinking
Fund
|
The
Securities are not subject to any sinking fund.
|
7.
|
Notice
of Redemption
|
Notice
of
redemption will be mailed by first-class mail at least 30 days but not more
than
60 days before the redemption date to each Holder of Securities to be redeemed
at his, her or its registered address. Securities in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest on
all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with a Paying Agent on or before the redemption date and certain
other
conditions are satisfied, on and after such date interest ceases to accrue
on
such Securities (or such portions thereof) called for redemption.
TRDOCS01/76765.8 X-
X-0
0. Xxxxxxxxxx
of Securities at the Option of the
Holders
upon Change of Control and Asset Sales
Upon
the
occurrence of a Change of Control, each Holder shall have the right, subject
to
certain conditions specified in the Indenture, to cause the Company to
repurchase all or any part of such Holder’s Securities at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), as provided in, and subject to the terms of, the
Indenture.
In
accordance with Section 4.06 of the Indenture, the Company will be required
to
offer to purchase Securities upon the occurrence of certain events.
|
9.
|
Subordination
|
The
Securities and Guarantees are subordinated to Senior Indebtedness, as defined
in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness
must
be paid before the Securities and Guarantees may be paid. The Company and each
Guarantor agrees, and each Holder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
|
10.
|
Denominations;
Transfer; Exchange
|
The
Securities are in registered form, without coupons, in denominations of $1,000
and whole multiples of $1,000. A Holder shall register the transfer of or
exchange of Securities in accordance with the Indenture. Upon any registration
of transfer or exchange, the Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or to transfer or exchange any
Securities for a period of 15 days prior to a selection of Securities to be
redeemed.
|
11.
|
Persons
Deemed Owners
|
The
registered Holder of this Security shall be treated as the owner of it for
all
purposes.
|
12.
|
Unclaimed
Money
|
If
money
for the payment of principal or interest remains unclaimed for two years, the
Trustee and a Paying Agent shall pay the money back to the Company at its
written request unless an abandoned property law designates another Person.
After any such payment, the Holders entitled to the money must look to the
Company for payment as general creditors and the Trustee and a Paying Agent
shall have no further liability with respect to such monies.
TRDOCS01/76765.8 B-
B-7
13. Discharge
and Defeasance
Subject
to certain conditions, the Company at any time may terminate some of or all
its
obligations under the Securities and the Indenture if the Company deposits
with
the Trustee money or U.S. Government Obligations for the payment of principal
and interest on the Securities to redemption or maturity, as the case may
be.
|
14.
|
Amendment;
Waiver
|
Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least
a
majority in aggregate principal amount of the outstanding Securities (voting
as
a single class) and (ii) any past default or compliance with any provisions
may
be waived with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company
and
the Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article 5 of the
Indenture; (iii) to provide for uncertificated Securities in addition to or
in
place of certificated Securities; (iv) to add Guarantees with respect to the
Securities; (v) to add additional covenants of the Company for the benefit
of
the Holders or to surrender rights and powers conferred on the Company; (vi)
to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (vii) to make any change that
does
not adversely affect the rights of any Holder; (viii) to make any change in
the
subordination provisions of the Indenture that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company (or
any
Representative thereof) under such subordination provisions; or (ix) to provide
for the issuance of the Exchange Securities or Additional
Securities.
|
15.
|
Defaults
and Remedies
|
If
an
Event of Default occurs (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company) and is
continuing, the Trustee or the Holders of at least 25% in principal amount
of
the outstanding Securities, in each case, by notice to the Company, may declare
the principal of, premium, if any, and accrued but unpaid interest on all the
Securities to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company occurs, the
principal of, premium, if any, and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part
of
the Trustee or any Holders. Under certain circumstances, the Holders of a
majority in principal amount of the outstanding Securities may rescind any
such
acceleration with respect to the Securities and its consequences.
If
an
Event of Default occurs and is continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers under the Indenture at the
request or direction of any of the Holders unless such Holders have offered
to
the Trustee reasonable indemnity or security against any loss, liability or
expense and certain other conditions are complied with. Except to enforce the
right to receive payment of principal, premium (if any) or interest when due,
no
Holder may pursue any remedy with respect to the Indenture or the Securities
unless (i) such Holder has previously given the Trustee notice that an Event
of
Default is continuing, (ii)
TRDOCS01/76765.8 B-
B-8
the
Holders of at least 25% in principal amount of the outstanding Securities have
requested the Trustee in writing to pursue the remedy, (iii) such Holders have
offered the Trustee reasonable security or indemnity against any loss, liability
or expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and
(v)
the Holders of a majority in principal amount of the outstanding Securities
have
not given the Trustee a direction inconsistent with such request within such
60-day period. Subject to certain restrictions, the Holders of a majority in
principal amount of the outstanding Securities are given the right to direct
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee or of exercising any trust or power conferred on the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with law
or
the Indenture or that the Trustee determines is unduly prejudicial to the rights
of any other Holder or that would involve the Trustee in personal liability.
Prior to taking any action under the Indenture, the Trustee shall be entitled
to
indemnification satisfactory to it in its sole discretion against all losses
and
expenses caused by taking or not taking such action.
|
16.
|
Trustee
Dealings with the Company
|
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture,
in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee.
|
17.
|
No
Recourse Against Others
|
No
director, officer, employee, incorporator or holder of any equity interests
in
the Company or of any Guarantor or any direct or indirect parent corporation,
as
such, shall have any liability for any obligations of the Company or the
Guarantors under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of
Securities by accepting a Security waives and releases all such
liability.
|
18.
|
Authentication
|
This
Security shall not be valid until an authorized signatory of the Trustee (or
an
authenticating agent) manually signs the certificate of authentication on the
other side of this Security.
|
19.
|
Abbreviations
|
Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
|
20.
|
Governing
Law
|
THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE
STATE OF NEW YORK.
TRDOCS01/76765.8 B-
B-9
21. CUSIP
Numbers; ISINs
The
Company has caused CUSIP numbers and ISINs to be printed on the Securities
and
has directed the Trustee to use CUSIP numbers and ISINs in notices of redemption
as a convenience to the Holders. No representation is made as to the accuracy
of
such numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The
Company will furnish to any Holder of Securities upon written request and
without charge to the Holder a copy of the Indenture which has in it the text
of
this Security.
TRDOCS01/76765.8 B-
B-10
ASSIGNMENT
FORM
To
assign
this Security, fill in the form below:
I
or we
assign and transfer this Security to:
(Print
or
type assignee’s name, address and zip code)
(Insert
assignee’s soc. sec. or tax I.D. No.)
and
irrevocably appoint agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date:
Your
Signature:
Sign
exactly as your name appears on the other side of this Security.
Signature
Guarantee:
|
Date:
|
|
|
Signature
must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor program reasonably
acceptable to the Trustee
|
Signature
of Signature Guarantee
|
TRDOCS01/76765.8 B-
B-11
OPTION
OF HOLDER TO ELECT PURCHASE
If
you want to elect to have this Security purchased by the Company pursuant to
Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the Indenture, check
the box:
|
Asset
Sale
|
Change
of Control
|
If
you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, state the amount ($1,000 or an integral multiple
thereof):
$
Date:
Your
Signature:
(Sign
exactly as your name appears on the other side of this
Security)
Signature
Guarantee:
Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor program reasonably acceptable to the
Trustee
TRDOCS01/76765.8 B-
B-12
[TO
BE
ATTACHED TO GLOBAL SECURITIES]
SCHEDULE
OF INCREASES OR DECREASES IN GLOBAL SECURITY
The
initial principal amount of this Global Security is $______________. The
following increases or decreases in this Global Security have been
made:
|
Date
of Exchange
|
Amount
of decrease in Principal Amount of this Global Security
|
Amount
of increase in Principal Amount of this Global Security
|
Principal
amount of this Global Security following such decrease or
increase
|
Signature
of authorized signatory of Trustee or Securities
Custodian
|
|
2
|
Use
the Schedule of Increases and Decreases language if Security
is in Global
Form.
|
B-13
EXHIBIT
C
[FORM
OF]
TRANSFEREE
LETTER OF REPRESENTATION
Covalence
Specialty Materials Corp.
c/o
Wells
Fargo Bank, National Association
●
●
Attention:
Vice President
Ladies
and Gentlemen:
This
certificate is delivered to request a transfer of $[ ] principal amount of
the
10¼% Senior Subordinated Notes due 2016 (the “Securities”) of COVALENCE
SPECIALTY MATERIALS CORP. (the “Company”).
Upon
transfer, the Securities would be registered in the name of the new beneficial
owner as follows:
Name:
________________________
Address:
_____________________
Taxpayer
ID Number: __________
The
undersigned represents and warrants to you that:
1. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the “Securities Act”)),
purchasing for our own account or for the account of such an institutional
“accredited investor” at least $100,000 principal amount of the Securities, and
we are acquiring the Securities not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and
we
invest in or purchase securities similar to the Securities in the normal course
of our business. We, and any accounts for which we are acting, are each able
to
bear the economic risk of our or its investment.
2. We
understand that the Securities have not been registered under the Securities
Act
and, unless so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account
for
which we are purchasing Securities to offer, sell or otherwise transfer such
Securities prior to the date that is two years after the later of the date
of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Securities (or any predecessor thereto) (the
“Resale Restriction Termination Date”) only (1)(a) inside the United States to a
person whom we reasonably believe is a qualified institutional buyer (as defined
in rule 144A under the Securities Act) purchasing for its own account or for
the
account of a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A under the Securities Act, (b) outside the United
States to a foreign person in a transaction meeting the requirements of Rule
903
or Rule
TRDOCS01/76765.8 C-
C-1
904
of
Regulation S under the Securities Act, (c) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 thereunder (if
applicable) or (d) in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
acceptable to the Company if the Company so requests), (2) to the Company or
(3)
pursuant to an effective registration statement and, in each case, in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction. In addition, we will, and each subsequent holder
is required to, notify any purchaser of the Security evidenced hereby of the
resale restrictions set forth above. No representation can be made as to the
availability of the exemption provided by Rule 144 for resale of the security
evidenced hereby. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer
of
the Securities is proposed to be made to an institutional “accredited investor”
prior to the Resale Restriction Termination Date, the transferor shall deliver
a
letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional “accredited investor” within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation
of
the Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause 1(b), 1(c)
or
1(d) above to require the delivery of an opinion of counsel, certifications
or
other information satisfactory to the Company and the Trustee.
Dated:
____________________
TRANSFEREE:
____________________,
By:
C-2
EXHIBIT
D
[FORM
OF
SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”) dated as of
[ ],
among [GUARANTOR] (the “New Guarantor”), a subsidiary of COVALENCE SPECIALTY
MATERIALS CORP. (or its successor), a Delaware corporation (the “Company”), and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee under the indenture referred to below (the “Trustee”).
W
I T N E
S S E T H :
WHEREAS
the Company and the existing Guarantors have heretofore executed and delivered
to the Trustee an indenture (as amended, supplemented or otherwise modified,
the
“Indenture”) dated as of February 16, 2006, providing for the issuance of the
Company’s 10¼% Senior Subordinated Notes due 2016 (the “Securities”), initially
in the aggregate principal amount of $265,000,000;
WHEREAS
Section 4.11 of the Indenture provides that under certain circumstances the
Company is required to cause the New Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Guarantor shall
unconditionally guarantee all the Company’s obligations under the Securities
pursuant to a Guarantee on the terms and conditions set forth herein;
and
WHEREAS
pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the
existing Guarantors are authorized to execute and deliver this Supplemental
Indenture;
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor,
the Company, and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the Securities as follows:
1. Defined
Terms.
As used
in this Supplemental Indenture, terms defined in the Indenture or in the
preamble or recital hereto are used herein as therein defined, except that
the
term “Holders” in this Guarantee shall refer to the term “Holders” as defined in
the Indenture and the Trustee acting on behalf of and for the benefit of such
Holders. The words “herein,” “hereof” and “hereby” and other words of similar
import used in this Supplemental Indenture refer to this Supplemental Indenture
as a whole and not to any particular section hereof.
2. Agreement
to Guarantee.
The New
Guarantor hereby agrees, jointly and severally with all existing Guarantors
(if
any), to unconditionally guarantee the Company’s obligations under the
Securities on the terms and subject to the conditions set forth in Articles
11
and 12 of the Indenture and to be bound by all other applicable provisions
of
the Indenture and the Securities and to perform all of the obligations and
agreements of a Guarantor under the Indenture.
3. Notices.
All
notices or other communications to the New Guarantor shall be given as provided
in Section 13.02 of the Indenture.
TRDOCS01/76765.8 D-
D-1
4. Ratification
of Indenture; Supplemental Indentures Part of Indenture.
Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain
in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
5. Governing
Law.
THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
6. Trustee
Makes No Representation.
The
Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
7. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
8. Effect
of Headings.
The
Section headings herein are for convenience only and shall not effect the
construction thereof.
TRDOCS01/76765.8 D-
D-2
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed as of the date first above written.
[NEW
GUARANTOR]
By:
Name:
Title:
COVALENCE
SPECIALTY MATERIALS CORP.
By:
Name:
Title:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
By:
Name:
Title:
D-3
